Case T-370/02: Action brought on 12 December 2002 by Alpenhain-Camembert-Werk Gottfried Hain GmbH & Co. KG and six other undertakings against the Commission of the European Communities
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), cows’ milk cheese, designation of origin, location of production, product designation

8.3.2003

EN

Official Journal of the European Union

C 55/29

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the decision of the defendant of 25 September

2002 in the appeal procedure R 337/2001-1;

Community trade mark Word mark ‘SnMIX’ — Appli-
applied for:

cation No 1422294

— order the defendant to pay the costs.

Goods or services:

Goods in Class 6 (inter alia, met-
allic semi-finished products in the
form of sheets, trips, wires, tubes,
sections and rods)

Pleas in law and main arguments

Community trade mark Word mark ‘SnPUR’ — Appli-
applied for:

cation No 1421775

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of appeal

Goods or services:

Goods in Class 6 (inter alia, met-
allic semi-finished products in the
form of sheets, trips, wires, tubes,
sections and rods)

Pleas in law:

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of appeal

— Infringement

of
Article 7(1)(b) and (c) of
Regulation (EC) No 40/94
since the mark is not descrip-
tive.

Pleas in law:

— Infringement

of
Article 7(1)(b) and (c) of
Regulation (EC) No 40/94
since the mark is not descrip-
tive.

Action brought on 12 December 2002 by Alpenhain-
Camembert-Werk Gottfried Hain GmbH & Co. KG and
six other undertakings against the Commission of the
European Communities

(Case T-370/02)

(2003/C 55/80)

(Language of the Case: German)

Action brought on 9 December 2002 by Wieland-Werke
AG against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-369/02)

(2003/C 55/79)

(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
9 December 2002 by Wieland-Werke AG, Ulm (Germany),
represented by S. Gruber and F. Graf von Stosch, lawyers.

The applicant claims that the Court should:

— annul the decision of the defendant of 25 September

2002 in the appeal procedure R 335/2001-1;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 December 2002 by Alpenhain-
Camembert-Werk Gottfried Hain GmbH & Co. KG, established
in Lehen/Pfaffing (Germany), Bayerland eG, established in
Nuremberg (Germany), Bergpracht-Milchwerk GmbH & Co,
established in Tettnang (Germany), Hochland AG, established
in Heimenkirch (Germany), Käserei Champignon Hofmeister
GmbH & Co. KG, established in Lauben (Germany), Milchwerk
Crailsheim-Dinkelsbühl eG, established in Crailsheim (Germ-
any) and Rücker GmbH, established in Aurich (Germany),
represented by J. Salzwedel and M.J. Werner, lawyers, with an
address for service in Luxembourg.

The applicants claim that the Court should:

— annul the inclusion, pursuant to Commission Regulation
(EC) No 1829/2002 of 14 October 2002 amending the
Annex to Regulation (EC) No 1107/96 with regard to the
name ‘Feta’, of the name ‘Feta’ (PDO) as a protected
designation of origin (PDO) in the register of protected
designations of origin;

— order the defendant to pay the costs.

— order the defendant to pay the costs.

C 55/30

EN

Official Journal of the European Union

8.3.2003

Pleas in law and main arguments

Action brought on 17 December 2002 by Technische
Glaswerke Ilmenau GmbH against the Commission of the
European Communities

The applicants, the main producers of the cow-milk feta
produced in Germany, seek the annulment of Commission
Regulation (EC) No 1829/2002 (1).

The applicants submit first of all that the information in
Greece’s notification of 17 January 1995 does not satisfy the
formal requirements for the inclusion of ‘Feta’ in the list of
protected designations of origin. That is so because Greece’s
application was out of time, precluding the Commission from
registering ‘Feta’ under the shortened procedure pursuant to
Article 17 of Regulation (EEC) No 2081/92 (2). Furthermore, it
is not possible for the name ‘Feta’ to be protected under
Article 17 since Greece did not introduce protection of feta at
national level until 11 January 1994, that is to say almost six
months after Regulation (EEC) No 2081/92 entered into force.

The applicants further submit that the contested regulation
does not comply in the slightest with the grounds of the
decision of the Court of Justice of 16 March 1999 (3), according
to which the Commission must accord decisive importance to
the markets which, at
the time of Greece’s application,
had already lawfully developed in the Member States and
throughout the world. Moreover, the product ‘feta’
is not
capable of being protected since it is not a protected desig-
nation of origin but rather a generic name. Under Article 3(1)
of Regulation No 2081/92 generic names cannot be registered.
Furthermore, feta is a product which originates not just from
Greece, but from the Mediterranean and Balkan region. Feta
has been produced and consumed in considerable quantities
for decades in six Member States. In addition, the burden rests
with Greece to prove that feta is not a generic name; it has not
adduced evidence discharging this burden.

The applicants also argue that the requirements of Articles 2
and 4 of Regulation No 2081/92 are not met. Feta is not a
traditional geographic name. The name ‘feta’ comes from
Italian and means ‘slice’, and was a generic name before the
adoption of Regulation No 2081/92 and thus allowed to be
used in intra-Community trade between Member States. Finally
the registration of ‘Feta’ infringes the Community-law funda-
mental rights to protection of property and of exercise of a
profession, nor is the injury to property justified by Article 30
EC.

( 1) Commission Regulation (EC) No 1829/2002 of 14 October 2002
amending the Annex to Regulation (EC) No 1107/96 with regard
to the name ‘Feta’ (OJ 2002 L 277, p. 10).

( 2) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin
for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).
( 3) Judgment of the Court of Justice in Joined Cases C-289/96, C-293/
96 and C-299/96 Denmark and Others v Commission [1999]
ECR I-1541.

(Case T-378/02)

(2003/C 55/81)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2002 by Technische
Glaswerke Ilmenau GmbH, whose registered office is in
Ilmenau (Germany), represented by G. Schohe and C. Arhold,
Rechtsanwälte, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Commission’s decision of 2 October 2002,
C(2002) 2147 endg., on State aid by Germany in favour
of Technische Glaswerke Ilmenau GmbH;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant acquired four glass production lines from
Ilmenauer Glaswerke GmbH, in liquidation, an undertaking of
the German Bundesanstalt
für vereinigungsbedingte Son-
deraufgaben (Federal Institution for Special Tasks arising from
Unification) (‘BvS’). In the contested decision, the Commission
classified two measures by Germany in connection with that
acquisition as State aid: There was a guarantee in favour of BvS
for a remaining purchase price balance of DEM 1,8 million.
BvS had declared itself willing to replace that guarantee by a
land charge. In addition, Thüringer Aufbaubank (Thüringen
Bank for Reconstruction) (‘TAB’) had granted the applicant a
loan of DEM 2,0 million. The Commission held these measures
incompatible with the common market.

The applicant argues that the loan by TAB to the applicant
was not an aid, because it corresponded to market conditions,
was covered by a general aid regulation approved by the
Commission, and served to compensate for a claim for
damages of the applicant against the Land Thüringen which
was justified from the standpoint of State liability. The
replacement of
the residual
purchase price for three production lines by a land charge was
also no aid.

the guarantee in respect of

The applicant further argues that the Commission has not
demonstrated that the measures could affect trade between
Member States. Furthermore, refusal of authorisation under
Article 87(3)(c) EC was based on obvious errors of assessment
and reasoning. The Commission refused to take important
facts into account in the considerations which it took as the