Case T-203/02: Action brought on 2 July 2002 by The Sunrider Corporation against the Office for Harmonisation in the Internal Market
Date: 2002-09-28
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), aerated drink, beer, fruit juice, mineral water, non-alcoholic beverage, trade-mark law

C 233/26

EN

Official Journal of the European Communities

28.9.2002

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the decision of the Commission of 25 February
2002 imposing on the applicant the penalty provided for
in Article 86(2)(f) of
the Staff Regulations, namely
removal from post without loss of entitlement to pension;

— annul the Commission’s decision of 27 July 2001 refusing
to classify the applicant in the higher grade of his career
bracket in accordance with Article 31(2) of the Staff
Regulations;

— annul any connected and/or subsequent decision;

— order

the Commission to pay to the

applicant
EUR 12 500 by way of compensation for non-material
damage;

— annul,

in so far as is necessary, the express decision
adopted by the Court of Auditors on 26 February 2002
in which it rejected the complaint submitted by the
applicant pursuant to Article 90(2) of those regulations;

— order the Court of Auditors to pay all the costs of these

— order the Commission to pay the entire costs.

proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant was found guilty of a number of criminal
offences by the Cour d’Appel, Brussels. However, that court
ordered a suspended sentence of 5 years subject to a number
of conditions in order to avoid affecting the applicant’s civic
status.

Subsequently, in view of the seriousness of the offences, the
Commission removed the applicant from his post without loss
of entitlement to pension.

In support of his arguments, the applicant alleges lack of a
statement of reasons and breach of the rights of the defence.
Moreover, the applicant claims that the disciplinary measure is
disproportionate to the seriousness of the effect of his conduct
on the institution and his work. Finally, the applicant alleges
infringement of Article 7 of Annex IX to the Staff Regulations.

The applicant in this case, a former official of the Commission
and the Court of Auditors of the European Communities,
contests the refusal of the appointing authority to classify him
in the higher grade of his career bracket at the time of his
recruitment to grade B5 step 3, following his inclusion on the
list of suitable candidates drawn up on the basis of competition
No COM/B/340.

In support of his claims, the applicant alleges that:

— substantive errors and manifest errors of assessment were
made in respect of his professional qualifications, the
length and relevance of his professional experience with
regard to the post to be filled, and the level of his
remuneration in his successive positions;

— the obligation to state reasons was not observed.

Action brought on 28 June 2002 by Pierre Tomarchio
against the Court of Auditors of the European Communi-
ties

Action brought on 2 July 2002 by The Sunrider Corpor-
ation against the Office for Harmonisation in the Internal
Market

(Case T-201/02)

(2002/C 233/48)

(Case T-203/02)

(2002/C 233/49)

(Language of the case: French)

(Language of the case: English)

An action against the Court of Auditors of the European
Communities was brought before the Court of First Instance
of the European Communities on 28 June 2002 by Pierre
Tomarchio, residing in Nancy (France), represented by Nicolas
Lhoëst, lawyer, with an address for service in Luxembourg.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 2 July 2002 by The Sunrider
Corporation, represented by Mr Axel Kockläuner of Meissner,
Bolte & Partner in Munich, Germany.

28.9.2002

EN

Official Journal of the European Communities

C 233/27

A further party to the proceedings before the Board of Appeal
was Juan Espadafor Caba, Granada, Spain.

Grounds of claim:

The applicant claims that the Court should:

— annul the Decision of the First Board of Appeal of the
defendant dated 8 April 2002 in case R 1046/2000-1;

— order the Office to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

The Community trade
mark concerned:

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

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

Decision of the Oppo-
sition Division:

The word mark ‘VITAFRUIT’ for
certain goods in classes 5, 29 and
32 (a.o. beers, mineral and aerated
waters and other non-alcoholic
drinks, fruit and vegetable drinks,
fruit juices; syrups and other prep-
arations for making beverages;
herbal and vitamin beverages)

Juan Espadafor Caba

The national mark ‘VITAFRUT’
for goods in classes 30 and 32
(a.o. non-alcoholic and non-thera-
peutic carbonic drinks, fruit and
vegetable juices without fermen-
tation,
lemonades, orangeades,
cold beverages, soda water)

Upheld opposition insofar as it
was based on the goods ‘fruit and
vegetable juices without fermen-
lemonades, orangeades’
tation,
and insofar as it was directed
against the goods ‘mineral and
aerated waters and other non-
alcoholic drinks,
fruit and veg-
etable drinks, fruit juices; syrups
and other preparations for mak-
ing beverages; herbal and vitamin
beverages’.

Decision of the Board of
Appeal:

Dismissal of the appeal by the
applicant.

— Infringement of Article 43 of
Regulation 40/94 (1), since
there was no satisfactory
proof of the genuine use of
the opposing trademark.

— Infringement of Article 8 (1)
b of Regulation 40/94 since
there is no danger of con-
fusion with regard to certain
goods.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11, p. 1).

Action brought on 10 July 2002 by Commune de Cham-
pagne and Others against Council of the European Union
and Commission of the European Communities

(Case T-212/02)

(2002/C 233/50)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of
the European Communities was brought
before the Court of First Instance of the European Communities
on 10 July 2002 by Commune de Champagne and Others,
Canton de Vaud (Switzerland), represented by Denis Wael-
broeck, lawyer.

The applicant claims that the Court should:

— annul Article 1 of Decision 2002/309/EC, Euratom
Decision of
the Council and of the Commission as
regards the Agreement on Scientific and Technological
Cooperation, of 4 April 2002 on the conclusion of seven
Agreements with the Swiss Confederation in so far as
the Council and the Commission thereby approved
Article 5(8) of Title II of Annex 7 to the Agreement
between the European Community and the Swiss Confed-
eration on Trade in Agricultural Products (‘the Cham-
pagne Clause’);