Case T-182/02: Action brought on 10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria against Office for the Harmonization in the Internal Market (trade marks and designs) (OHIM)
Date: 2002-08-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), medicinal product, pharmaceutical product

C 202/32

EN

Official Journal of the European Communities

24.8.2002

Pleas and main arguments

In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a
group said to comprise Erba Lautex GmbH in liquidation
and Neue Erba Lautex GmbH aid amounting in total to
EUR 7 834 million.

The applicant submits that the Commission was incorrect in its
finding that the applicant and Erba Lautex GmbH constituted a
unit or group of undertakings and that therefore the ability to
approve rescue and restructuring aid could only be assessed in
favour of the group, that the Deggendorf doctrine was to be
applied and the aid was to be claimed back from both members
of the group. The Commission’s Decision is said to be based
on the erroneous finding that the applicant’s case did not
constitute a residual arrangement under the terms of the
exception provided for in footnote 10 of the Guidelines (1). By
not applying that exceptional provision the Commission
infringed the principle of equal treatment and provided no
objective reason for the unequal treatment.

The applicant maintains that the Commission’s finding that
the applicant and Erba Lautex GmbH were to be deemed to
is
constitute a group was erroneous since the applicant
controlled not by Erba Lautex GmbH but by the liquidator. In
consequence of
the erroneous assumptions made by the
Commission the contested decision was already unlawful and
liable to be set aside for breach of Article 87(3)(c) EC in
conjunction with the Guidelines.

Action brought on 10 June 2002 by Uni-Pharma — Kleon
Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki
kai Emboriki Eteria against Office for the Harmonization
in the Internal Market (trade marks and designs) (OHIM)

(Case T-182/02)

(2002/C 202/53)

(Language of the case: French)

An action against the Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika
Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria, whose
registered office is in Kato Kifissia, Attiki (Greece), represented
by Eleni Gioti-Manthou and Maria Bra.

The applicant claims that the Court should:

— find that there is no likelihood of confusion between the

marks in question;

— annul the contested decision of the Fourth Board of

Appeal of 27 February 2002;

— order the Office to pay the costs of all the proceedings,

including lawyers’ fees incurred by the applicant.

Pleas in law and main arguments

In the alternative the applicant maintains that the Commission
in the
wrongly classified the relevant measure as aid or,
alternative, assumed a level of aid intensity greater than was
the case. In addition, in finding that the decision of 1999 to
claim repayment of aid concerning Erba Lautex GmbH had
not been complied with, the Commission manifestly erred in
its findings of facts in that regard.

Applicant for the Com-
munity trade mark:

The applicant

The Community trade Word mark ‘Apotel’ in respect of
certain goods in Class 5 (anal-
mark concerned:
gesics and antipyretics) — appli-
cation No 613554

Furthermore, the applicant is claiming that the Commission
committed errors of assessment and infringed essential formal
requirements. It infringed the duty to provide a statement of
reasons and the Federal Government’s right to be heard.
Finally, the Commission misused its discretion in adopting the
contested decision and infringed the right to administration in
accordance with the rules.

(1) Community Guidelines on State aid for rescuing and restructuring

firms in difficulty (OJ 1999 C 288, p. 2).

Biofarma (previously Orsem)

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

sign

National and international word
Trade mark or
asserted by way of oppo- mark ‘Aportex’ in respect of cer-
tain goods in Class 5 (pharmaceu-
sition in the opposition
tical products for the prevention
proceedings:
and/or treatment of the meno-
pause)

Decision of the Oppo-
sition Division:

Dismissal of entire opposition

Decision of the Board of
Appeal:

Annulment of the decision of the
Opposition Division

24.8.2002

EN

Official Journal of the European Communities

C 202/33

Grounds of claim:

— Irregularity of the procedure
in that the appeal was reas-
signed to another Board of
appeal and that the applicant
the
was not
informed of
change of name of
the
opponent.

— Failure of

the Board of
Appeal to provide reasons
for its decision.

— Breach of

the concept of

‘likelihood of confusion’.

— Misuse of

rights by the
opponent in that it has not
made any use of the mark
objected to.

Action brought on 11 June 2002 by El Corte Inglés, S.A.
against the Office for Harmonisation in the Internal
Market

(Case T-183/02)

(2002/C 202/54)

(Language of the case: Spanish)

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant.

Community trade mark Word mark MUNDICOR (appli-
cation published in Community
applied for:
Trade Mark Bulletin No 27/98,
p. 600, 14 April 1998) for goods
in the 42 classes of the nomencla-
ture.

Owner of the mark or
sign relied on in the
opposition proceedings:

Mark or sign opposed:

Gonza´lez Cabello S.A.

Spanish mark MUNDICOLOR for
goods in class 2 (colours, varnish-
es, lacquers, preservatives against
rust and against deterioration of
wood; colorants; mordants; raw
natural resins; metals in foil and
powder form for painters, decor-
ators, printers and artists).

Decision of
sition division:

the oppo-

Application allowed.

Decision of the Board of
Appeal:

Dismissal of the appeal brought
by El Corte Inglés S.A.

Pleas in law relied on:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (like-
lihood of confusion).

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 11 June 2002 by El Corte Inglés,
S.A. of Madrid, represented by Juan Luis Rivas Zurdo.

Action brought on 11 June 2002 by El Corte Inglés, S.A.
against the Office for Harmonisation in the Internal
Market

The applicant claims that the Court should:

— annul the decision of 22.3.02 of OHIM’s First Board of
Appeal and the decision of 17.9.99 of OHIM’s opposition
division;

— allow registration of Community Trade Mark No 557108
‘MUNDICOR’ to proceed for all goods claimed in Class 2;

— order the opponent(s) to pay the costs.

(Case T-184/02)

(2002/C 202/55)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 11 June 2002 by El Corte Inglés,
S.A. of Madrid, represented by Juan Luis Rivas Zurdo.