Case T-216/02: Action brought on 17 July 2002 by Fieldturf Inc. against the Office for Harmonization in the Internal Market (Trademarks and Designs)
Date: 2002-09-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), registered trade mark, sports facilities, trade-mark law

28.9.2002

EN

Official Journal of the European Communities

C 233/29

applicant submits that in doing so, the Commission has
disregarded several procedural rules set
forth in Council
Directive 76/768/EEC (2), as last amended by Commission
Directive 2000/41/EC (3), which the contested Directive pur-
ports to implement.

Action brought on 17 July 2002 by Fieldturf Inc. against
the Office for Harmonization in the Internal Market
(Trademarks and Designs)

the procedural safeguards set out

It alleges that
in the
Cosmetics Directive and in the Commission Decision estab-
lishing the Scientific Committee on Cosmetic Products and
Non Food Products intended for Consumers (4) have been
violated. By not adequately informing the applicant of the
ongoing deliberations and the status of
the Committee’s
opinion on acrylamide, by disrespecting procedural safeguards
aimed at preserving the impartiality of the decision-making,
by using scientific standards that are at odds with prevailing
EU decisions, by manifestly misinterpreting the data submitted
by the applicant and by not adequately allowing the applicant
to state its case and express its view on studies co-authored by
it,
the Commission has violated the applicant’s rights of
defence in a way which affects the validity of the contested
Directive. Furthermore, the defendant omitted to notify the
applicant of the Directive, so that the legislative process is
affected by a procedural deficiency which necessarily affects its
validity.

The applicant submits that the contested Directive improperly
to the Cosmetics
includes polyacrylamides in Annex III
Directive based on a calculation of cancer potency which is at
odds with the more specific and prevailing review of acrylami-
de under the EU chemicals legislation. The contested Directive
also infringes a series of well established principles of Com-
munity law, e.g. the duty to state reasons, the principle
of proportionality, the principle of uniform application of
Community law and the principle of equal treatment. Finally,
the Commission did not consider all interests at stake and
ignored the recent scientific findings.

( 1) OJ L 102, p. 19.
( 2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-
mation of the laws of the Member States relating to cosmetic
products (OJ L 262, p. 169).

( 3) Commission Directive 2000/41/EC of 19 June 2000 postponing
for a second time the date after which animal tests are prohibited
for
ingredients of cosmetic
products (OJ L 145, p 25).

ingredients or combinations of

( 4) Commission Decision 97/579/EC of 23 July 1997 setting up
Scientific Committees in the field of consumer health and food
safety (OJ L 237, p. 18).

(Case T-216/02)

(2002/C 233/52)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market (Trademarks and Designs) was brought before the
Court of First Instance of the European Communities on
17 July 2002 by Fieldturf Inc. Montreal (Canada), represented
by Dr Patrick Baronikians at Schwarz Kurtze Schniewind
Kelwing Wicke in Munich, Germany

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of
the Office for Harmonisation in the Internal Market
(Trademarks and Designs) of 15 May 2002 (Case R 462/
2001-1) concerning the registration of the trademark
‘LOOKS LIKE GRASS... FEELS LIKE GRASS... PLAYS LIKE
GRASS’ and direct that the claimed mark will be registered
for all the goods and service applied for;

— order the Office for Harmonisation in the Internal
Market (Trademarks and Designs) to pay the costs of the
applicant.

Pleas in law and main arguments

The trade mark con-
cerned:

The word mark ‘LOOKS LIKE
GRASS... FEELS LIKE GRASS...
PLAYS LIKE GRASS’ — appli-
cation No 1712918

Goods or service con-
cerned:

Goods and services in Classes 27
and 37 (i.a. synthetic surfaces for
athletic activities)

Decision
before
Appeal:

contested
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of the appeal

C 233/30

EN

Official Journal of the European Communities

28.9.2002

Grounds of claim:

— The trademark applied for
satisfies
the minimum
requirements for a distinc-
tive character (Article 7(1)(b)
of Regulation (EC) No 40/
94 (1)).

— The contested decision is
contrary to jurisprudence of
the Court.

( 1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-

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

Action brought on 23 July 2002 by Olga Lutz Herrera
against the Commission of the European Communities

(Case T-219/02)

(2002/C 233/53)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2002 by Olga Lutz Herrera,
residing in Brussels, represented by D. Ramón Garcia-Gallardo,
Gil Fournier and D. Javier Guillén Carra, lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision refusing the applicant’s
application to take part in competition COM/A/6/01;

— overturn the dismissal of the administrative appeal against
the refusal of the applicant’s application to take part in
the said competition;

Pleas in law and main arguments

In the present action, the applicant seeks the annulment of the
jury’s decision of 31 July 2001 in competition COM/A/6/01
in so far as the applicant was thereby refused admission to that
competition on the ground that she exceeded the age limit set
in the notice of competition.

In support of her claim, the applicant alleges:

— that the Commission made a manifest error of assessment
in that, in her appeal, the applicant was not seeking a
declaration that one of the conditions stipulated in the
notice of competition, namely the condition regarding
age, was illegal, but a declaration that the jury’s decision
refusing her admission to the competition was illegal;

— infringement of

the principle of equality, enshrined
in Article 13 of the EC Treaty, which prohibits all
discrimination based on age;

— infringement of Article 6 of the Charter of Fundamental
Rights of the European Union and Article 14 of the
European Convention on Human Rights.

Action brought on 23 July 2002 by Heron Robotunits
the Office for Harmonisation in the
GmbH against

Internal Market (Trade Marks and Designs)

(Case T-222/02)

(2002/C 233/54)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
23 July 2002 by Heron Robotunits GmbH, of Lustenau
(Austria), represented by M. Bergermann, Lawyer.

The applicant claims that the Court should:

— order such other relief as the Court may think appropriate
so that the Commission fulfils its obligations under
Article 233 EC and, specifically, conducts a fresh examin-
ation of appeal No 486/01;

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 6 May 2002 (Ref: R 1095-2000-
1);

— order the defendant to pay the costs.

— order the defendant to pay the costs.