Case T-66/03: Action brought on 26 February 2003 by Koffiebranderĳ en Theehandel "Drie Mollen sinds 1818" B.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-05-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

24.5.2003

EN

Official Journal of the European Union

C 124/23

effect. Moreover, the right to due process of law is infringed
by the case-handler’s inadequate knowledge of languages or
the premature change of case-handler.

is not guilty of any
The applicant also submits that it
infringement of Article 81(1) EC.
the
It complains that
Commission based its decision on an incoherent presentation
of the events. In the alternative, it submits that in any event it
cannot be charged with participation in a single infringement
over a lengthy period. This leads to a reduction in gravity and
to the limitation of actions in respect of individual acts that
took place more than five years before the beginning of
proceedings.

Moreover, the applicant submits that the decision infringes
Article 15(2) of Regulation No 17/62 with regard to the upper
limit of the fine. The applicant is not the ultimate parent
company of ‘Unternehmensgruppe Knauf’ and it cannot be
held liable for the conduct of other companies, because the
Knauf undertaking is not connected via a single legal person
as ultimate parent company of the group. The applicant also
complains that
the
necessary investigations in that respect.

the Commission failed to carry out

Furthermore, the applicant complains that the Commission
infringed Article 253 EC and Article 15(2) of Regulation
No 17/62 as a result of the assessment of the fine, which
exceeded the limits of its discretion. Moreover, the Commission
infringed the principle of equal treatment, because it did not
reduce the applicant’s fine even though the applicant had
cooperated with the Commission to the same extent as BPB
plc., whose fine was reduced by 30 %.

Finally, the applicant complains of the excessive length of the
procedure and claims that it is an infringement of Article 6(1)
of the European Convention for the Protection of Human
Rights.

European Communities on 26 February 2003 by Koffiebrand-
erij en Theehandel ‘Drie Mollen sinds 1818’ B.V., ’s-Hertogen-
bosch, the Netherlands, represented by Mr P. Steinhauser,
Lawyer, with an address for service in Luxembourg. Manuel
Nabeiro Silveria, Lda. was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of 17 December 2002 of the Second

Board of Appeal in case R 270/2001-2

— order the office to bear only its own costs.

Pleas in law and main arguments

Applicant for the Com- Manuel Nabeiro Silveria, Lda.
munity trade mark:

Community trade mark
sought:

Figurative mark ‘GALAXIA’, for
‘coffee’ in class 30 (registration n
812073)

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

KOFFIEBRANDERIJ EN THEE-
HANDEL ‘DRIE MOLLEN SINDS
1818’

Mark or sign cited in
opposition:

National marks ‘GALA’ for certain
goods in class 30

Decision of the Oppo-
sition Division:

Opposition rejected.

Decision of the Board of
Appeal:

Opponent’s appeal dismissed.

Action brought on 26 February 2003 by Koffiebranderij
en Theehandel ‘Drie Mollen sinds 1818’ B.V. against the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

Pleas in law:

(Case T-66/03)

(2003/C 124/41)

(Language of the case: English)

An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the

— misapplication of Article 42
paragraph 1 and Article 8
paragraph 1 b) of Regu-
lation 40/94 (1). The appli-
cant challenges the Board of
conclusion that
Appeal’s
there is no likelihood of con-
fusion between the
two
marks.

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

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