Case T-73/03: Action brought on 26 February 2003 by Bernard Zaoui, Lucien Zaoui and Déborah Stain, née Zaoui against the Commission of the European Communities
Date: 2003-05-24
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, Palestine question, West Bank question, terrorism

C 124/24

EN

Official Journal of the European Union

24.5.2003

Action brought on 27 February 2003 by Henkel KGaA
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-67/03)

(2003/C 124/42)

Decision of the Board of Mr. Brutsaert’s appeal allowed in
part. Application to register may
Appeal:
proceed also in respect of the
goods ‘cleaning, polishing, scour-
ing and abrasive preparation’ in
Class 3. Mr. Brutsaert’s appeal
dismissed for
remainder;
Opponent’s appeal dismissed.

the

(Language of the case: English)

Pleas in law:

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
27 February 2003 by Henkel KgaA, Düsseldorf, Germany,
represented by Dr C. Osterrieth, lawyer, with an address for
service in Luxembourg. Koen Brutsaert was also a party to the
proceedings before the Board of Appeal.

The applicant claims that the Court should:

— misapplication

of

Arti-
cle 43(2) and (3) of Regu-
lation 40/94 (1). The appli-
cant challenges the Board of
Appeal’s findings in relation
to the issue of using and thus
to
maintaining entitlement
the national mark ‘CIDE’.

— misapplication

of

Arti-
cle 8(1)(b) of Regulation 40/
94. The applicant challenges
the Board of Appeal’s find-
ings regarding the issue of
similarity of goods.

— annul the decision of the First Board of Appeal of the
OHIM of 17 December 2002 in the appeal proceedings
No R 940/2001-1;

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

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

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

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

Mark or sign cited in
opposition:

Decision of the Oppo-
sition Division:

Koen Brutsaert

‘Professional
Figurative mark
Hygiene CID lines’
for certain
goods in Classes 1, 3 and 5 (appli-
cation No 506618)

Henkel KGaA

National marks ‘CIDE’ (for certain
goods in classes 1 and 5) and ‘CID’
(in respect of certain goods in
Classes 1 and 3.

Opposition upheld for part of the
contested goods, namely ‘bleach-
ing preparations and other sub-
stances for laundry use; cleaning,
polishing, scouring and abrasive
preparation’ (Class 3). The appli-
cation for registration may pro-
ceed for the remaining goods of
the application.

Action brought on 26 February 2003 by Bernard Zaoui,
Lucien Zaoui and Déborah Stain, née Zaoui against the
Commission of the European Communities

(Case T-73/03)

(2003/C 124/43)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 26 February 2003 by Bernard
Zaoui, residing in Combs-la-Ville (France), Lucien Zaoui,
residing in Netanya (Israel), and Déborah Stain, née Zaoui,
residing in Ramat Gan (Israel), represented by Jean Alex
Buchinger, lawyer.

24.5.2003

EN

Official Journal of the European Union

C 124/25

The applicants claim that the Court should:

Action brought on 3 March 2003 by Intech EDM B.V.
against the Commission of the European Communities

— find the defendant liable for the harm suffered by the
applicants as a result of the attack on 27 March 2002 on
the Park Hotel in Netanya (Israel);

— order the defendant, in respect of the harm suffered by

the applicants, to pay the following amounts:

— to Lucien Zaoui, EUR 1 million in compensation for

non-material damage;

— to Bernard Zaoui, EUR 1,5 million, in compensation

for non-material damage;

— to Déborah Stain, née Zaoui:

(Case T-74/03)

(2003/C 124/44)

(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 3 March 2003 by Intech EDM B.V.,
Lomm (Netherlands), represented by M. Karl, Rechtsanwalt.

— EUR 1 million in respect of bodily injury;

The applicant claims that the Court should:

— EUR 2 millions in respect of non-material

damage;

— annul the Commission’s decision of 17 December 2002

(Case COMP/E-2/37.667 — Special Graphite);

— an amount

to be settled in the course of

— in the alternative, reduce the fine imposed by Article 3(h)

proceedings for material damage.

of the decision;

— order the defendant to pay the costs.

— order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicants are relatives of Mrs Zaoui, who died on
27 March 2002 when a Palestinian terrorist carried out an
in Israel. The applicants claim that the
attack on a hotel
education in the Palestinian territories in the West Bank and in
the Gaza strip is the certain and direct cause of the attack
which cost Mrs Zaoui her life, since that education incites
individuals to hatred and terrorism. They claim that the
defendant participated financially in that form of education,
the content of which it was presumably aware of and on which
it could have an influence. According to the applicants, the
defendant also infringed the provisions applicable to the
financial support programmes (Articles 6 and 177(2) of the
EC Treaty), the principles of sound financial management, the
agreements entered into between the Communities and the
United Nations Relief and Works Agency for Palestinian
refugees (UNRWA), Article 3 of Regulation No 1488/96/EC
and Amendment No 177 to the 2002 EC General Budget. In
that context, they claim that the liability of the Communities
has been incurred by virtue of the second paragraph of
Article 288 of the EC Treaty.

The applicant distributes isostatically pressed special graphite,
but does not itself produce it. Its activity in the European
special graphite market is based on a cooperation agreement
between itself and Ibiden Co. Ltd., a Japanese producer
of isostatic special graphite. The Commission accused the
applicant, a former subsidiary of
the latter and various
producers of isostatic special graphite (including Ibiden) of
taking part
in a continuing agreement and/or concerted
practice on the market for special graphite in the European
Community and the European Economic Area. According to
the Commission’s finding, the applicant participated from
February 1994 to May 1997 at European and regional level.

The applicant argues that
the Commission has wrongly
classified it as an offender. In reality, at least for the period up
to 26 September 1995, the applicant could only be classified
as a helper of Ibiden. According to Article 15(2) of Regulation
No 17, a helper cannot be punished with a fine. The applicant
further maintains that the Commission ignored several mitigat-
ing circumstances, particularly the subsidiary role of the
applicant, and the fact that it voluntarily ended its participation
long before the other participants and long before the Com-
mission first intervened.