Case T-126/03: Action brought on 14 April 2003 by Reckitt Benckiser (España), S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-06-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

7.6.2003

EN

Official Journal of the European Union

C 135/37

equality of treatment as regards the use of English during the
selection procedure, in addition to other alleged defects in the
same procedure. The applicant also argues that insufficient
reasons were stated for the contested decision.

Action brought on 14 April 2003 by AES Drax Power
Limited against the Commission of the European Com-
munities

(Case T-124/03)

(2003/C 135/59)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 April 2003 by AES Drax Power
Limited, Selby, United Kingdom, represented by K. P. E. Lasok
QC and Ms. E. Gibson-Bolton, Solicitor.

considerations are mistaken,
there would be no serious
social difficulties if British Energy became insolvent, and the
contested Decision is, therefore, in breach of paragraph 23 (c)
of the Guidelines. The applicant also claims that the aid in
question is not restricted to the amount needed to keep British
Energy in business, because if British Energy were placed into
administration, as provided for by English insolvency law, the
cost of keeping it in business might be smaller. For this reason
the applicant considers that the contested Decision is also
contrary to paragraph 23(e) of the Guidelines. The applicant
further claims that the contested Decision violated para-
graph 23 (a) of the Guidelines, by failing to take into account
that the contested aid takes the form of cash placed on deposit
by the government. According to the applicant these deposits
remove the market risk of dealing with British Energy and are
therefore not identical to loans or state guarantees of loans
provided for in paragraph 23 (a) of the Guidelines. Finally, the
applicant contends that the defendant exceeded the limits
placed upon the exercise of its discretion by the EC Treaty and
the general principles of EC law in failing to take account of
the impact of the contested aid on the competitors of British
Energy.

(1) OJ 1999 No C 288 p. 2.

The applicant claims that the Court should:

— Order any measures of enquiry necessary to resolve the

issues of fact in this case

Action brought on 14 April 2003 by Reckitt Benckiser
(España), S.L. against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

— Annul the contested decision of 27 November 2002
authorising State Aid NN101/02 to British Energy plc.

— order the defendant to pay the applicant’s costs

(Case T-126/03)

(2003/C 135/60)

Pleas in law and main arguments

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

In September 2002 the United Kingdom Government awarded
a package of rescue aid to British Energy plc., one of the main
producers of electricity in the United Kingdom and a nuclear
stations operator. By the contested Decision the defendant
decided that this state aid was compatible with the EC Treaty.
The applicant, a competitor of British Energy, seeks the
annulment of that Decision, contending that the defendant
breached its own Guidelines on State Aid for Rescuing and
Restructuring firms in difficulty (1). The applicant disputes the
defendant’s findings that in the absence of the aid in question
British Energy would be insolvent and have to cease operating
and that if it did so there would be serious consequences both
for nuclear safety and for the security of power supply in
the United Kingdom. According to the applicant all these

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
14 April 2003 by Reckitt Benkiser (España), S.L., Barcelona,
Spain represented by Ms Monica Esteve Sanz, lawyer,

ALADIN Gesellschaft für innovative mikrobiologische Systeme
GmbH was also a party to the proceedings before the Board of
Appeal.

C 135/38

EN

Official Journal of the European Union

7.6.2003

The applicant claims that the Court should:

— Declare that the decision of the First Board of Appeals of
31 January 2003 rendered in case 389/2002-1, has
infringed Article 4, paragraphs 2 and 3 and/or article 8
paragraph 1, letter b) of Regulation 40/94 (1);

— Consequently, altering this decision, declare the dismissal
of registration of community trade mark application
no. 397.323 ALADIN (word), or — eventually — order
the devolution of the case to the First Board of Appeal;

— Order the defendant and if

the
intervener to pay all the costs of these proceedings and
the costs of the opposition and appeal incurred within
the OHIM.

the case might be,

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

ALADIN Gesellschaft für innova-
tive mikrobiologische
Systeme
GmbH.

Community trade mark Word mark ‘ALADIN’, for certain
goods in classes 1, 3, 35, 37
concerned:
and 42 (application No 397323)

Mark or sign cited in
opposition:

National mark ‘ALADDIN’ for cer-
tain goods (‘polish for metals’) in
Class 3

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Pleas in law:

Opposition rejected.

Opponent’s appeal dismissed.

Misapplication of Article 43 para-
graphs 2 and 3 and Article 8
paragraph 1 b) of Regulation 40/
94. The applicant challenges the
Board of Appeal’s ruling that the
applicant’s trade mark, cited in
opposition, had only been used
for one particular category of
goods (‘cotton impregnated with
a metal polishing agent for house-
hold use’) and that, given that
use, there was no likelihood of
confusion
two
between
marks. According to the applicant
this is not a case where the earlier
mark has been used in relation to
only part of the goods for which it
is registered. The applicant asserts
that the earlier mark had been
registered for ‘polish for metals’
and that ‘impregnated cotton with
a polishing agent’ is, in fact, ‘pol-
ish for metals’, meaning that the
earlier mark had been used for all
the products for which it was
registered.

the

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

RECKITT BENCKISER (ESPAÑA),
S.L.

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

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