Case T-270/02: Action brought on 28 August 2002 by MLP Finanzdienstleistungen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), information processing, insurance, trade-mark law

9.11.2002

EN

Official Journal of the European Communities

C 274/33

The applicant also argues that the Commission’s assertion that
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link
between it and the applicant’s public service obligations is not
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.

The applicant submits that the Commission has misapplied
Article 87 and infringed the case-law on findings regarding aid
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the
decision on cross-subsidisation in favour of the business client
parcel service can be attributed to State-run bodies of the
Federal Republic of Germany. Moreover the Commission has
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely
covered by Article 82. It has also disregarded the fact that the
financing of temporary below-cost selling was an economically
sound decision.

Finally,
infringed the principle of the right to a fair hearing.

the applicant submits that

the Commission has

( 1) Commission Decision 2001/354/EC of 20 March 2001 relating
to a proceeding under Article 82 of the EC Treaty (Case COMP/
35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of
26 June 2002 in the appeal procedure R 206/2002-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘bestpartner’ — appli-
applied for:

cation No 2 268 134

Goods or services:

Services in Classes 36, 38 and
42 (inter alia, insurance, Internet
services and data processing for
others)

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of appeal

Pleas in law:

— No grounds for refusal under
Article 7(1)(b) and (c) of
Regulation (EC) No 40/
94 (1);

— No need to keep free.

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

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 28 August 2002 by MLP Finanz-
dienstleistungen AG against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

Action brought on 2 September 2002 by Österreichische
Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG against the Com-
mission of the European Communities

(Case T-270/02)

(2002/C 274/58)

(Language of the case: German)

(Case T-271/02)

(2002/C 274/59)

(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
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-
berg (Germany), represented by W. Göpfert, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 September 2002 by Österreichi-
sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
sche Landesbank-Hypothekenbank AG, established in Vienna
and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
and R. Bierwagen, Lawyers.