Judgment of the Court of First Instance of 9 October 2002 in Case T-173/00: KWS Saat AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Regulation (EC) No 40/94 — Colour (shade of orange) — Absolute ground for refusal — Distinctive character — Statement of reasons)
Date: 2002-12-21
Institutions: Court of First Instance
Subjects: EU office or agency, EU trade mark, action for annulment (EU), designs and models, trade-mark law

C 323/30

EN

Official Journal of the European Communities

21.12.2002

COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 17 October 2002

of 9 October 2002

in Case T-98/00: Linde AG v Commission of the European
Communities (1)

in Case T-173/00: KWS Saat AG v Office for Harmonis-
ation in the Internal Market (Trade Marks and Designs)
(OHIM) (1)

(State aid — Definition — Advantage — Normal commer-
cial transaction — Rational operator in a market economy)

(Community trade mark — Regulation (EC) No 40/94 —
Colour (shade of orange) — Absolute ground for refusal —
Distinctive character — Statement of reasons)

(2002/C 323/46)

(2002/C 323/47)

(Language of the case: German)

(Language of the case: German)

In Case T-98/00, Linde AG, established in Wiesbaden (Germ-
any), represented by H.-J. Rabe and G. Berrisch,
lawyers,
supported by Federal Republic of Germany (Agents: W.-
D. Plessing, J. Sedemund and T. Lübbig), v Commission of the
European Communities (Agents: D. Triantafyllou and K.-
D. Borchardt): Application for partial annulment of Com-
mission Decision 2000/524/EC of 18 January 2000 on the
State aid granted by Germany to Linde AG (OJ 2000 L 211,
p. 7), the Court of First Instance (Fifth Chamber, Extended
Composition), composed of: J.D. Cooke, President, R. García-
Valdecasas, P. Lindh, N.J. Forwood and H. Legal,
Judges;
D. Christensen, Administrator, for the Registrar, has given a
judgment on 17 October 2002, in which it:

In Case T-173/00, KWS Saat AG, established in Einbeck
(Germany), represented by G. Würtenberger, lawyer, with an
address for service in Luxembourg, v Office for Harmonisation
in the Internal Market (Trade Marks and Designs) (OHIM)
(Agents: A. von Mühlendahl, E. Joly, J. Miranda de Sousa and
A. Di Carlo): Action brought against the decision of the Second
Board of Appeal of the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) of 19 April 2000
(Case R 282/1999-2), the Court of First Instance (Second
Chamber), composed of: R.M. Moura Ramos, President, J. Pir-
rung and A.W.H. Meij, Judges; B. Pastor, Principal Adminis-
trator, for the Registrar, has given a judgment on 9 October
2002, in which it:

1. Annuls Articles 2 and 3 of Commission Decision 2000/524/
EC of 18 January 2000 on the State aid granted by Germany
to Linde AG;

1. Annuls the decision of the Second Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 19 April 2000 (Case R 282/1999-2) in regard
to services in Class 42;

2. Orders the Commission to bear its own costs and pay those of

2. Dismisses the remainder of the action;

the applicant;

3. Orders the Federal Republic of Germany to bear its own costs.

3. Orders the applicant to bear its own costs and two thirds of the
costs incurred by the defendant. The defendant shall bear one
third of its costs.

( 1) OJ C 176 of 24.6.2000.

(1) OJ C 259 of 9.9.2000.