Case T-352/02: Action brought on 25 November 2002 by Creative Technology Limited against the Office for Harmonization in the Internal Market
Date: 2003-01-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), audiovisual equipment, electronic equipment, recording equipment, trade-mark law

C 19/42

EN

Official Journal of the European Communities

25.1.2003

Pleas in law and main arguments

The applicant is engaged in the sale and distribution of
professional camera models produced by its Japanese parent
company, Ikegami Tsushinki Co Ltd.

The applicant seeks annulment of Article 2 of Council
Regulation (EC) No 1696/2002 (1), amending the annex to
Council Regulation (EC) No 2042/2000 (2) imposing a defini-
television camera
tive anti-dumping duty on imports of
systems originating in Japan, to the extent that it limits the
application of the decision to imports of models from the date
of receipt by the Commission of the request for exemption,
namely 12 October 2001.

The applicant submits that professional camera models which
cannot be qualified as broadcast cameras were excluded from
the scope of the anti-dumping measures by the investigation
which found dumping and injury to the Community Industry
for broadcast cameras. Regulation 1696/2002 recognizes that
the models in question, listed in the annex, cannot be qualified
as broadcast cameras. According to the applicant however, the
regulation limits the temporal application of the exclusion
from the anti-dumping measure for those models and indicates
that anti-dumping duties are to be imposed on any imports of
those models prior to 12 October 2001. Therefore, the
applicant claims that the decision contained in article 2 of
Regulation No 1696/2002 constitutes a violation of Council
Regulation (EC) No 384/96 on protection against dumped
imports from countries not members of the European Com-
munity (3), as amended, and the WTO anti-dumping code (4),
according to which the imposition of anti-dumping duties is
only allowed on products included in the scope of an
investigation and injury caused by those products.

The applicant furthermore invokes the arbitrariness of the
contested decision and a manifest error of assessment. Accord-
ing to the applicant, the contested decision presumes that
imports prior to the date of the request must have been
professional cameras which could be qualified as broadcast
cameras, and therefore subject to anti-dumping duties. This
presumption is arbitrary since no basis is set forth for this
conclusion and the objective findings in Regulation 1696/
2002 in fact support the opposite conclusion. The applicant
also indicates that there is no serious risk of circumvention of
the anti-dumping duties if the decision were applicable regard-
less of the date of importation. Given that the regulation
confirms that the models are not broadcast cameras, there is
no reason why the importer would declare the models as
broadcast cameras which are subject to the anti-dumping
duties.

The applicant finally invokes a violation of the principle
of equal treatment. According to the applicant, an earlier
modification of the annex was applicable irrespective of
the date of importation without there being any objective
differences justifying this different treatment.

(1) Council Regulation (EC) No 1696/2002 of 23 September 2002
amending the Annex to Regulation (EC) No 2042/2000 imposing
a definitive anti-dumping duty on imports of television camera
systems originating in Japan (OJ L 259, p. 1).

(2) Council Regulation (EC) No 2042/2000 of 26 September 2000
imposing a definitive anti-dumping duty on imports of television
camera systems originating in Japan (OJ L 244, p. 38).

(3) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, p. 1).

(4) Uruguay Round of Multilateral Trade Negotiations (1986- 1994)
— Annex 1 — Annex 1A — Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994
(WTO-GATT 1994) (OJ L 336, p. 103).

Action brought on 25 November 2002 by Creative
Technology Limited against the Office for Harmonization
in the Internal Market

(Case T-352/02)

(2003/C 19/79)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the
European Communities on 25 November 2002 by Creative
Technology Limited, Singapore, represented by Dr Michael
Edenborough, barrister, Mr Stephen Jones, solicitor, and Mr
Paul Rawlinson, solicitor.

A further party to the proceedings before the Board of Appeal
was Mr José Vila Ortiz, Valencia, Spain. The applicant claims
that the Court should:

— order that the Community trade park application No 673

327 proceed to registration;

— annul the decision of the Opposition Division No 154/

2001;

— annul the decision of the Fourth Board of Appeal No R

265/2001-4;

— order that the opponent pays to the applicant the costs
incurred bu the applicant in connection with this appeal
and the appeal before the Board of Appeal and the
opposition before the Opposition Division.

25.1.2003

EN

Official Journal of the European Communities

C 19/43

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The Community trade
mark concerned:

Creative Technology Limited.

the community trade mark appli-
cation No 673327 for the word
mark ‘PC WORKS’ for goods in
class 9 (apparatus for recording,
transmitting
reproducing
and
sound or images, loudspeakers, a.
o.).

Proprietor of the right to Mr José Vila Ortiz.
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

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

the Spanish figurative mark ‘W
registered under
No 1925320, in relation to goods
in class 9 (sound electronical
equipments, loudspeakers, sound
reproducing apparatus, a. o.).

Decision of the Oppo-
sition Division:

Rejection of the Community trade
mark application.

Decision of the Board of
Appeal:

Dismissal of the appeal brought
by Creative Technology Limited.

Grounds of claim:

‘Work’

the applicant submits that undue
weight was given to the common
in both marks
element
and insufficient consideration was
given to the fact that the goods in
question are only bought after
careful examination of the fea-
tures of the goods, thus reducing
the
confusion
amongst the relevant public.

likelihood

of

Action brought on 3 December 2002 by Chum Limited
against the Office for Harmonisation in the Internal
Market

(Case T-359/02)

(2003/C 19/80)

European Communities on 3 December 2002 by Chum
Limited, Toronto (Canada), represented by Michael Gilbert,
Solicitor. A further party to the proceedings before the Board
of Appeal was Star TV AG, Schlieren (Switzerland).

The applicant claims that the Court should:

— set aside the Decision of the Second Board of Appeal of
OHIM, dated 17th September, 2002 in Appeal No.
R1140/2000-2,

— order that the Community Trade Mark application No.
890145 be registered for the services in Class 38 and
Class 41,

— order that costs be awarded to the Applicant in this
Appeal, in Appeal No. R1140/2000-2 and in Opposition
No. 184525.

Pleas in law and main arguments

Applicant for the Com-
munity Trade-mark:

Chum Limited

The Community trade- Word mark ‘STAR TV’ — appli-
cation No 890145, relating to
mark concerned:
goods in classes 38 and 41.

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

or

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

Star TV AG

Figurative trade-mark composed
of the words ‘STAR TV’ superpos-
ing a big black and white star,
accompanied by 3 smaller stars
and a small moon (international
registration No 638769, covering
Austria, Germany, the Benelux,
France and Italy), relating to goods
in classes 38 and 41.

Decision of the Oppo-
sition Division:

Rejection of the Community Tra-
de-mark.

Decision of the Board of
Appeal:

Refusal of the Appeal.

(Language of the case: English)

Grounds of the claim:

Incorrect application of Article
8(1)(b) of Regulation (EC) No 40/
94.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the