Case T-402/02: Action brought on 27 December 2002 by August Storck KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), confectionery product, trade-mark law

C 55/36

EN

Official Journal of the European Union

8.3.2003

After finding an error in the wording of multiple-choice
question number 35 of test (b), the jury decided to cancel that
question.

Pleas in law:

In support of her claims, the applicant alleges a manifest error
of assessment in the marking of questions number 21 in test
(a) and number 9 in test (c). She also alleges misuse of powers
in the present case.

— Infringement

of
Article 7(1)(b) of Regulation
(EC) No 40/94 (1);

— Infringement of Article 7(3)
of Regulation (EC) No 40/
94.

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

Community trade mark (OJ 1993 L 11, p. 1).

Action brought on 27 December 2002 by August Storck
KG against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-396/02)

(2003/C 55/89)

(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
27 December 2002 by August Storck KG, Berlin, represented
by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-
te, with an address for service in Luxembourg.

The applicant claims that the Court should:

— set aside the decision of the Fourth Board of Appeal of
the Office for Harmonisation in the Internal Market of
14 October 2002 in Case R 187/2001-4;

— order the Office to pay the costs.

Pleas in law and main arguments

Trade mark for which
Community registration
sought:

A three-dimensional mark in the
form of a caramel sweet of a
light brown colour — Application
No 784314

Goods or services:

Goods of Class 30 (confectionery)

Decision
before
Appeal:

challenged
the Board of

Refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Dismissal of the complaint

Action brought on 27 December 2002 by August Storck
KG against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case T-402/02)

(2003/C 55/90)

(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
27 December 2002 by August Storck KG, Berlin, represented
by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-
te, with an address for service in Luxembourg.

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of
the Office for Harmonisation in the Internal Market of
18 October 2002 in Case R 256/2001-2;

— order the Office to pay the costs.

Pleas in law and main arguments

Trade mark for which
Community registration
sought:

The pictorial mark consisting of
the illustration of a wrapped sweet
— Application No 784454

Goods or services:

Goods of Class 30 (sweets)

Decision
before
Appeal:

challenged
the Board of

Refusal of
examiner

registration by the

8.3.2003

EN

Official Journal of the European Union

C 55/37

Decision of the Board of
Appeal:

Pleas in law:

Dismissal of the complaint

— Infringement

of
Article 7(1)(b) of Regulation
(EC) No 40/94 (1);

— Infringement of Article 7(3)
of Regulation (EC) No 40/
94;

— Infringement of Article 74(1)
of Regulation (EC) No 40/
94;

— Infringement of Article 73 of

Regulation (EC) No 40/94;

— Infringement of the right to

a proper hearing.

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

Community trade mark (OJ 1993 L 11, p. 1).

Action brought on 7 January 2003 by the Verein für
Konsumenteninformation (VKI) against the Commission
of the European Communities

(Case T-2/03)

(2003/C 55/91)

(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 7 January 2003 by the Verein für
Konsumenteninformation (Association for Consumer Infor-
mation — VKI), represented by A. Klausner, Lawyer.

The applicant claims that the Court should:

— annul Commission Decision (2002) 330472 of
18 December 2002 by which the applicant was entirely
refused access to inspect the Commission’s records con-
cerning the competition proceedings against Austrian
banks (COMP/36.571 ‘Lombard Club: Cartel’)

— order the Commission to pay the costs.

Pleas and main arguments

The applicant is a consumer organisation constituted under
the Austrian law on associations which in order to safeguard
the collective interests of consumers has special powers in
connection with civil proceedings. Currently, the applicant is

conducting several sets of civil proceedings before Austrian
courts against the Bank für Arbeit und Wirtschaft AG. He
submits that, in order to conduct these proceedings success-
fully, in particular in order to underpin the claims made with
the argument that the Bank’s incorrect conduct was part of a
systematic anti-competitive concerted practice over a number
of years between the Austrian banks, it has sought authoris-
ation to inspect the administrative records concerning the
Commission’s
competition proceedings against Austrian
banks. In the contested decision the Commission rejected the
applicant’s application.

The applicant claims that the contested decision runs counter
to the fundamental right of Union citizens granted under
Article 255(1) and (2) EC and Article 42 of the EU Charter of
Fundamental Rights to access to public documents. Further-
more, the decision conflicts with the provisions of Regulation
(EC) No 1049/2001 (1). A once-for-all exclusion of the entirety
of the administrative records from the right to access to the
documents would, in the absence of closer examination of the
individual documents for the purpose of determining whether
or not they are suitable for publication, not be in accordance
with the provisions of that regulation or the case-law of the
Community judicature.

The applicant goes on to claim that the exceptional circum-
stances mentioned in the third indent of Article 4(2) of
Regulation No 1049/2001 do not justify refusal of access to
the documents because the relevant inspection activities by
the Commission have already been concluded. Nor are the
requirements for application of the exception concerning
protection of commercial interests satisfied since the Com-
mission has not submitted in what manner banks’ commercial
interests might specifically be jeopardised. Prevention of the
making of justified claims by consumers who have suffered
loss is not a commercial interest worthy of protection within
the meaning of Regulation No 1049/2001. Nor does the
protection of court proceedings preclude the grant of access
to inspect documents. Furthermore, protection of the private
domain and of the individual’s integrity can readily be secured
by ensuring the anonymity of records.

In addition, the applicant claims that there is an overriding
public interest in inspection by the applicant of the Com-
mission’s records since collective enforcement of claims for
compensation by consumers who have suffered loss is con-
ducive to both enforcement of EC competition law and the
collective interests of consumers in the Community.

(1) Regulation (EC) No 1049/2001 of the European Parliament and
of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents.