Case T-383/02: Action brought on 13 December 2002 by G.D. Searle LLC against the Office for Harmonization in the Internal Market
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

22.2.2003

EN

Official Journal of the European Union

C 44/39

Pleas in law and main arguments

The applicant in the present action is the representative of
Seven Stars Pictures Italia (‘SSP’), a company with its head
office in Rome and which, on 13 August 1977, applied, in the
context of the Phare-Tacis Joint Venture Programme, for a
financial contribution towards the incorporation of an Italo-
Rumanian company (a joint venture project with Phoenix
European S.r.l.).
recorded that a contribution of
EUR 81 327, together with a further EUR 4 099 in respect of
the pre-feasibility stage, was granted, whereupon an advance
of EUR 28 311 was paid to SSP and the corresponding
contract was signed. At the end of the first phase of ‘Facility 2’
the remainder of the contribution was paid over.

is

It

According to the applicant, the relevant staff of the Com-
mission had continuously assured the abovementioned com-
pany that everything was in order and that all that needed to
be done was to calculate the precise amount still owing.
However, on 30 October 2001, the Commission adopted the
contested decision, refusing the joint venture company the
contribution granted by the joint venture programme.

In support of its claims, the applicant argues that insufficient
reasons were given and that the Commission made an error in
its evaluation of the facts.

The statement of reasons given for the contested decision is
too concise. Mention is made of a divergence between the
project as approved and the joint venture ultimately set up,
but no mention is made of any actual omission or discrepancy.

As regards the assertion that no documents are extant that
prove that the joint venture in question became operational,
and the allegation that no employees were even engaged and
no turnover achieved, the applicant submits that it has shown
that the joint venture is operational, that 12 professionals have
been retained and that business has been commenced,
in
particular in the field of professional training.

The applicant claims compensation of the damages it has
suffered as a result of the contested decision.

Action brought on 13 December 2002 by G.D. Searle LLC
against the Office for Harmonization in the Internal
Market

(Case T-383/02)

(2003/C 44/74)

(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 13 December 2002 by G.D. Searle
LLC, Illinois, United States of America, represented by Pro-
fessor W. A. Hoyng, lawyer.

A further party to the proceedings before the Board of Appeal
was PHYTO-ESP S.L.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the

OHIM of 1 October 2002 (Case R 627/2001-1);

— order the OHIM to compensate Searle for the costs of

these proceedings.

Pleas in law and main arguments

Registered Community
trade mark
against
which a request for dec-
laration on invalidity has
been introduced:

The word mark CELEBREX
(No 852 372) for certain goods in
class 5 (a.o. pharmaceuticals in
the nature of anti-inflammatory
analgesics)

Applicant for the Com-
munity trade mark:

G.D. Searle LLC

Applicant for the declar-
ation of invalidity of the
Community trade mark:

PHYTO-ESP S.L.

Trade mark or sign of
the applicant for declar-
ation of invalidity:

The national word mark CEREB-
RESP for certain goods in class 5
(pharmaceutical products a.o.)

Decision of the Cancel-
lation Division:

Declaration of invalidity of the
Community trade mark CELEB-
REX

Decision of the Board of
Appeal:

Dismissal
G.D. Searle LLC

of

the

appeal by

Grounds of claim:

Infringement of Article 8(1)(b) of
Regulation No 40/94 (1) in that
there is no likelihood of confusion
between the marks ...

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

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