Case T-37/03: Action brought on 4 February 2003 by Open Mobile Alliance Ltd. against the Office for Harmonization in the Internal Market
Date: 2003-04-05
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), registration tax, service, trade mark, trade-mark law

C 83/24

EN

Official Journal of the European Union

5.4.2003

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the Commission’s decision rejecting the applicant’s
candidature and refusing to admit him to the written
procedure in open competition EUR/A/166/01, as noti-
fied to him by decision of the appointing authority of
8 April 2002;

— annul the decision of the Second Board of Appeal of
OHIM of 18 November 2002 in file R 803/2001-2;

— uphold, therefore, the applicant’s opposition to regis-

tration of the trade mark ‘CARPO’, and

— in the alternative, order compensation for non-material

damage provisionally estimated at EUR 2 500;

— order the defendant to pay the costs.

— order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant in the present case challenges the decision
refusing to allow him to take part in the tests in competition
EUR/A/166/01, held for the purpose of constituting a reserve
for recruitment of A7/A6 administrators in the area of
auditing, on the ground that the qualifications and diplomas
produced by the applicant did not satisfy the conditions laid
down in point
the notice of competition. The
Selection Board considered that the applicant’s qualifications of
‘Ragioniere e Perito Commerciale’ and ‘Revisore Commerciale’
could not be regarded as equivalent to the qualification of
‘Dottore Commercialista’.

III.B.2 of

In support of his claims, the applicant alleges failure to comply
with of the notice of competition and infringement of the duty
to state reasons, and alleges that there was in the circumstances
of the case a manifest error of assessment. Specifically, he
argues that the Selection Board erred in its assessment of his
qualifications, diplomas, professional activity and training
periods in auditing which in fact enable him to claim a
professional qualification of equivalent level.

Applicant for the Com-
munity trade mark:

Basf Aktiengegesellschaft

The Community trade Word mark ‘CARPO’ for products
in class 5 (fungicides, herbicides,
mark concerned:
insecticides and pesticides).

Applicant.

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

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

Spanish word mark ‘HARPO Z’
for products in Class 5 (prep-
arations for destroying vermin,
fungicides, herbicides).

Decision of the Oppo-
sition Division:

Opposition rejected.

Decision of the Board of
Appeal:

Action dismissed.

Grounds of claim:

Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (like-
lihood of confusion)

Action brought on 31 January 2003 by Aventis Cropscien-
ce S.A. against Office for the Harmonisation of the
Internal Market (trade marks and designs) (OHIM)

Action brought on 4 February 2003 by Open Mobile
Alliance Ltd. against the Office for Harmonization in the
Internal Market

(Case T-35/03)

(2003/C 83/53)

(Language of the case: Spanish)

(Case T-37/03)

(2003/C 83/54)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market (trade marks and designs (OHIM) was brought before
the Court of First Instance of the European Communities on
31 January 2003 by Aventis Cropscience S.A., the registered
office of which is in Lyon (France), represented by Enrique
Armijo Chávarri.

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the
European Communities on 4 February 2003 by Open Mobile
Alliance Ltd., Reading, United Kingdom, represented by Ms
Alexandra Dellmeier, Attorney at Law.

5.4.2003

EN

Official Journal of the European Union

C 83/25

The applicant claims that the Court should:

— cancel the decision of the Third Board of Appeal of

20 November 2002;

— reassign the application No 1131739 for the figurative

mark ‘W@P’ to the original filing date of 8 April 1999;

— as an auxiliary request it is asked for that the application
No 1131739, the figurative mark ‘W@P’, be reassigned
the application date of 13 October 1999, the date given
to the application for the word mark ‘WAP FORUM’ with
the No 1131705 which was also filed for on 8 April
1999;

— as an auxiliary request it is asked for that the application
No 1131739, the figurative mark ‘W@P’, be reassigned
the application date of 21 December 1999;

— as an auxiliary request it

is asked for reinstatement

according to article 78 of Council Regulation 40/94;

Pleas in law and main arguments

The applicant applied on 8 April 1999 for the registration of
the figurative mark ‘W@P’ for goods and services in classes 35,
41 and 42 (application No 1131739). The then representatives
of the applicant requested that the filing fee be deducted from
their deposit account.

The defendant informed the applicant that the filing fee had to
be paid within a time-limit of one month. Later, the defendant
informed the applicant that since the application fee had not
been paid, the application would have, as its filing date,
the date on which all flaws had been remedied. The then
representatives of the applicant requested again that the fee be
deducted from their deposit account.

The defendant informed the applicant on 5 September 2000
that the application would have 17 March 2000 as its filing
date because this was the date actual payment by cheque was
received. The applicant was furthermore informed that the
deposit account did not have sufficient funds to debit the fee.

The applicant contested this decision before the board of
appeal on 23 January 2001. The Board of Appeal decided that
the appeal was out of time and declared it inadmissible.

In support of its present application, the applicant submits
that the defendant has breached an obligation it has as a public
authority to keep track of its bookkeeping and an infringement
of Article 41 of the Charter of Fundamental Rights, namely
the right to good administration. According to the applicant,
the defendant has the responsibility to notify within a reason-
able period of time any inconsistencies.

The applicant furthermore invokes a violation of Rule 52(2) of
Regulation 2868/95 (1) and an infringement of the right to
good administration and the right to an effective remedy and
a fair trial as incorporated in articles 41 and 47 of the Charter
of Fundamental Rights. The applicant states that no written
communication was attached as required by Rule 52(2).

The applicant
finally submits that the defendant made a
statement and not a decision so that the time-limit of two
months indicated in Rule 52(2) of Regulation 2868/95 is not
applicable.

(1) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ L 303, p. 1).

Action brought on 4 February 2003 by Merck Sharp &
Dohme Limited and 19 other applicants against
the
Commission of the European Communities and the Euro-
pean Agency for the Evaluation of Medicinal Products
(‘EMEA’)

(Case T-41/03)

(2003/C 83/55)

(Language of the case: English)

An action against the Commission of the European Communi-
ties and the European Agency for the Evaluation of Medicinal
Products (‘EMEA’) was brought before the Court of First
Instance of the European Communities on 4 February 2003 by
Merck Sharp & Dohme Limited, Hoddeston, United Kingdom,
Merck Sharp & Dohme BV, Haarlem, Netherlands, Laboratoires
Merck Sharp & Dohme-Chibret, Paris, France, MSD Sharp &
Dohme GmbH, Haar, Germany, Merck Sharp & Dohme (Italia)
SpA., Rome, Italy, Merck Sharp & Dohme, LDA. Paço de
Arcos, Portugal, Merck Sharp & Dohme de Espana S.A.,
Madrid, Spain, Merck Sharp & Dohme Ges.m.b.H., Wien,
Austria, Merck & Co. Inc., Whitehouse Station, USA, Dieck-
mann Arzneimittel GmbH, Haar, Germany, Neopharmed SpA,
Rome,
Italy, Istituto Gentili SpA., Pisa, Italy, Laboratórios
Químico-Farmacêuticos Chibret, LDA., Paço de Arcos, Portu-
gal, Laboratoires Sanofi, Synthelabo France, Paris, France,
Boehringer Ingelheim Pharma GmbH & Co.KG, Ingelheim,
Germany, VIANEX S.A., Nea Erythrea, Greece, Sigma-Tau
Industrie Farmaceutiche Riunite SpA., Rome, Italy, Mediola-
num SpA., Milano, Italy, BIOHORM S.A. (Groupo Uriach),
Barcelona, Spain, and LACER S.A., Barcelona, Spain, represent-
ed by Dr Georg M. Berrisch and Mr Peter Bogaert, Lawyers.