Case T-362/02: Action brought on 5 December 2002 by Muswellbrook Limited against the Office for Harmonisation in the Internal Market (OHIM)
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing, trade-mark law

22.2.2003

EN

Official Journal of the European Union

C 44/33

accorded the Italian postal operator preferential treatment vis-
à-vis the applicants, which are in competition with it in the
very sector of postal services which have been opened up to
competition.

( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
p. 27).

The applicant’s other pleas in law and arguments are the same
as those set out in Case T-351/02.

Action brought on 5 December 2002 by Muswellbrook
the Office for Harmonisation in the
Limited against
Internal Market (OHIM)

Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-
ties

(Case T-361/02)

(2003/C 44/63)

(Language of the case: German)

(Case T-362/02)

(2003/C 44/64)

(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 5 December 2002 by Deutsche
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,
with an address for service in Luxembourg.

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-
resented by J. Casulá Oliver, lawyer.

The applicant claims that the Court should:

The applicant claims that the Court should:

— find that the Commission infringed its obligations under
Article 87 and Article 88(1) EC in failing to adopt a
decision on the matters submitted to it by the applicant
in its complaint of 5 July 2002, and in any event, in
failing to initiate an investigation of State aid;

— order the Commission to pay the costs.

Pleas in law and main arguments

— declare incompatible with Regulation (EC) No 40/94 on
the Community trade mark, in particular Article 15(2)(a)
and/or Article 42(2) and (3) thereof, the decision of the
First Board of Appeal of the OHIM of 30 September
2002 in case No R 16/2000-1, inasmuch as it declares
that the opponent has failed to prove genuine use in the
Community of the Spanish trade mark No 88222 to
distinguish ready-to-wear and other items of clothing in
Class 25 during the five years preceding the publication
of the application for a Community trade mark;

The action has the same origin as that in Case T-351/02
(Deutsche Bahn v Commission).

— annul that decision in its entirety;

In the present action the applicant submits that the Com-
mission infringed its obligations under Article 87 and
Article 88(1) EC because, despite having been called upon to
act in accordance with paragraphs 2 and 3 of Article 232 EC,
it failed to investigate the compatibility of Paragraph 4(1),
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be
discerned in the Commission’s letter of 21 September 2002
and the Commission’s failure to act is not justified by objective
reasons.

— agree to vary that decision so as to declare that an
assessment of and a ruling on the merits of the opposition
to registration of Community trade mark No 278028 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 278028 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

— order the defendant and, where appropriate, the inter-
vener to pay all the costs of the proceedings and those
incurred at the administrative stages of the opposition
and appeal proceedings.

C 44/34

EN

Official Journal of the European Union

22.2.2003

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

NIKE INTERNATIONAL Ltd.

Community trade mark
sought by the appli-
cation:

The word mark ‘NIKE’ — appli-
cation No 278028 for goods in
Class 25 ‘clothing,
footwear,
headgear’.

Proprietor of mark or
sign right asserted in the
opposition proceedings:

Mark or sign right assert-
ed in opposition:

Decision of Opposition
Division:

Decision of Board of
Appeal:

Pleas in law:

The applicant.

The Spanish mixed trade mark
No 88222, composed of the word
‘NIKE’ together with the image of
the Greek goddess of victory of
Samothrace,
in
Class 25.

for products

Refusal of application.

Annulment of the decision of the
Opposition Division and rejection
of the opposition.

Improper or erroneous appli-
cation of Article 15(2)(a) and
Article 43(2) and (3) and of other
relevant provisions of Regulation
No 40/94 on the Community
trade mark.

Action brought on 5 December 2002 by Muswellbrook
Limited against the Office for Harmonisation in the
Internal Market (OHIM)

(Case T-363/02)

(2003/C 44/65)

(Language of the case: Spanish)

First Board of Appeal of the OHIM of 30 September
2002 in case No R 19/2000-1, inasmuch as it declares
that the opponent has failed to prove genuine use in the
Community of the Spanish trade mark No 88222 to
distinguish ready-to-wear and other items of clothing in
Class 25 during the five years preceding the publication
of the application for a Community trade mark;

— annul that decision in its entirety;

— agree to vary that decision so as to declare that an
assessment of and a ruling on the merits of the opposition
to registration of Community trade mark No 278093 is
appropriate, to which end the Court’s judgment should
declare that Community trade mark No 278093 is
refused, or, in the alternative, refer the case back to the
First Board of Appeal of the OHIM;

— order the defendant and, where appropriate, the inter-
vener to pay all the costs of the proceedings and those
incurred at the administrative stages of the opposition
and appeal proceedings.

Pleas in law and main arguments

The applicant seeking the Community trade mark, the pro-
prietor of the mark cited in opposition, the tenor of the
decisions of the Opposition Division and the Board of Appeal
and the pleas in law and main arguments are the same as those
in Case T-362/02 (MUSWELLBROOK LIMITED v OHIM).

The Community trade mark in respect of which registration is
sought
is the word mark ‘NIKE TOWN’ — application
No 278093 in respect of goods in Class 25 ‘clothing, footwear
and headgear’.

Action brought on 5 December 2002 by Muswellbrook
the Office for Harmonisation in the
Limited against
Internal Market (OHIM)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of
the European Communities on 5 December 2002 by
Muswellbrook Limited, established in Dublin (Ireland), rep-
resented by J. Casulá Oliver, lawyer.

The applicant claims that the Court should:

(Case T-364/02)

(2003/C 44/66)

(Language of the case: Spanish)

— declare incompatible with Regulation (EC) No 40/94 on
the Community trade mark, in particular Article 15(2)(a)
and/or Article 42(2) and (3) thereof, the decision of the

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