Case T-380/02: Action brought on 18 December 2002 by Success-Marketing Unternehmensberatungesellschaft m.b.H. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), exchange of information, foodstuff, trade-mark law

26.4.2003

EN

Official Journal of the European Union

C 101/35

annulment of Council Regulation (EC) No 881/2002 of 27 May
2002 imposing certain specific restrictive measures directed
against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban, and repealing
Council Regulation (EC) No 467/2001 prohibiting the export
of certain goods and services to Afghanistan, strengthening
the flight ban and extending the freeze of funds and other
financial resources in respect of the Taliban of Afghanistan (OJ
2002 L 139, p. 9), — the Court of First Instance (Second
Chamber), composed of N.J. Forwood, President, J. Pirrung and
A.W.H. Meij, Judges; H. Jung, Registrar, made an order on
3 February 2003, the operative part of which is as follows:

1.

2.

The action is dismissed as inadmissible in so far as it is directed
against the Commission.

The applicant is ordered to pay the costs relating to this part of
the action.

1.

2.

The application for interim relief is dismissed.

The costs are reserved.

Action brought on 18 December 2002 by Success-Market-
ing Unternehmensberatungesellschaft m.b.H. against the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case T-380/02)

(2003/C 101/66)

( 1) OJ C 289 of 23.11.2002.

the case:

to be determined in accordance with
(Language of
Article 131(2) of the Rules of Procedure — Application drafted in
German)

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

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
18 December 2002 by Success-Marketing Unternehmensbera-
tungesellschaft m.b.H., Linz (Austria), represented by G. Seck-
lehner, Rechtsanwalt, with an address for service in Luxem-
bourg. Additional party before the Board of Appeal: Chipita
International S.A., Athens.

of 19 December 2002

The applicant claims that the Court should:

in Case T-320/02 R: Monika Esch-Leonhardt and Others v
European Central Bank

(Proceedings for interim relief — Urgency — No urgency)

(2003/C 101/65)

(Language of the case: German)

— set aside the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market of
2 October 2002 (1);

— order the Office to allow restitution in integrum;

— order the Office to pay all the costs of the proceedings,
including those for the procedure before the Board of
Appeal.

Pleas in law and main arguments

In Case T-320/02 R: Monika Esch-Leonhardt, residing in
Frankfurt-am-Main (Germany), Tillmann Frommhold, residing
in Karben (Germany), and Emmanuel Larue, residing in
Frankfurt-am-Main, represented by B. Karthaus, Rechtsanwalt,
with an address for service in Luxembourg, against European
Central Bank (Agents: T. Gilliams, G. Gruber and B. Wägen-
baur) — application for the temporary removal of a document
from the personal files of the applicants — the President of the
Court of First Instance made an order on 19 December 2002,
the operative part of which is as follows:

The applicant applied to the Office for registration of the word
mark ‘PAN & CO’ for goods and services of classes 11, 30, 35,
37 and 42 (Application No 634287). Chipita International
S.A., owner of the pictorial mark ‘PAN SPEZIALITÄTEN’ for
goods of class 30 (Community Mark No 382374) lodged an
opposition to such registration.

The Opposition Division set a time-limit for the applicant to
submit its position on the opposition. The applicant did not
submit a position within that time-limit. By decision of

C 101/36

EN

Official Journal of the European Union

26.4.2003

22 September 1999, the Opposition Division held the oppo-
sition to be justified and dismissed the application for certain
goods of class 30.

Action brought on 3 February 2003 by Leder & Schuh
AG against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

The applicant argued that it was only in the context of an
enquiry with the Office that it learned that opposition to the
mark had been raised as early as 1998, and that up to that
point it had received no notification that an opposition had
been lodged.

In June 2000, the applicant made an application for restitutio
in integrum in accordance with Article 78 of Regulation (EC)
No 40/94, an application for inspection of the files and an
application for costs. The Opposition Division dismissed the
application for restitutio in integrum by decision of 25 October
2000. By the contested decision, the Board of Appeal dismissed
the applicant’s appeal.

The applicant argues that the contested decision infringed
essential procedural requirements, the Treaty and Regulation
(EC) No 40/94. It argues that it was deprived of the possibility
of defending its right to a fair hearing, as it was unable to
contact the opposing party during the ‘cooling-off’ period in
order to make a settlement, and it was not possible for it either
to submit its reaction to the opposition or to lodge an appeal
within the time-limits against the decision of the Opposition
Division. Accordingly, despite using all the care required in the
circumstances, the applicant was prevented from complying
with Office’s time-limits and is therefore, it submits, entitled to
restitutio in integrum.

The legal argument of the Board of Appeal, that an application
for restitutio in integrum is possible only within a year after
the expiry of the missed time-limit, cannot be accepted. Under
that argument, the possibility of restitution is removed by a
restrictive interpretation of Article 78 of Regulation (EC)
No 94/40 in the very circumstances where protection is most
needed, namely when no written document whatever was
served.

Finally, proof of service merely in the form of a fax confir-
mation which the Office may have can never be sufficient.

( 1) Decision of the First Board of Appeal in Case R 26/2001-1.

(Case T-32/03)

(2003/C 101/67)

(Language of the case: to be determined pursuant to Article 131(2)
of the Rules of Procedure — Language in which the application was
submitted: German)

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
3 February 2003 by Leder & Schuh AG, Graz (Austria),
represented by W. Kellenter and A. Schaffge,
lawyers.
Schuhpark Fascies GmbH, Warendorf (Germany), was also a
party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 27 November 2002,
in the
amended version of 9 December 2002, in Case R 494/
1999-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

The Applicant

mark

for products

‘JELLO
The
word
SCHUHPARK’
in
Classes 18, 25 and 28 (particu-
larly leather and imitations of
leather,
those
materials in so far as they fall
within Class 18, clothing, foot-
wear and toys — Application
No 107367

products

of

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Mark or sign cited in
opposition:

Schuhpark Fascies GmbH

German word mark ‘Schuhpark’
for products in Class 25 (particu-
larly boots, ankle boots, slippers,
shoes and sandals)