Case C-192/03 P: Appeal brought on 12 May 2003 by Alcon Inc., formerly Alcon Universal Ltd, against the judgment delivered on 5 March 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-237/01 between Alcon Inc., formerly Alcon Universal Ltd and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-07-05
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical industry, trade-mark law

5.7.2003

EN

Official Journal of the European Union

C 158/13

2.

3.

If the answer to question 1 is in the affirmative, is it
contrary to Directive 76/207 for an employer to offset
against an employee’s total entitlement to benefit under
an occupational sick-leave scheme, a period of absence
from work due to incapacity caused by a pregnancy
related illness arising during pregnancy?

If the answer to question 1 is in the affirmative, does
Directive 76/207 require an employer to have in place
special arrangements to cover absence from work due to
incapacity caused by pregnancy related illness arising
during pregnancy?

4. Does the operation of a sick leave scheme which treats
employees suffering from pregnancy related illness and
pathological illness come within the scope of Article 141
of the EC Treaty and Directive 75/117 (2) ?

5.

If the answer to question 4 is in the affirmative, is it
contrary to Article 141 of the Treaty and Directive 75/
117 for an employer to reduce a woman’s pay after she
has been absent from work for a designated period where
the absence is caused by incapacity due to a pregnancy
related illness arising during pregnancy in circumstances
in which a non pregnant woman or a man absent from
work for the same period as a result of incapacity due
to purely pathological
illness would suffer the same
reduction?

( 1) Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and
promotion, and working conditions (OJ L 039, 14.2.1976, p. 40-
42).

( 2) Council Directive 75/117/EEC of 10 February 1975 on the
approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women (OJ
L 045, 19.2.1975, p. 19-20).

Appeal brought on 12 May 2003 by Alcon Inc., formerly
Alcon Universal Ltd, against the judgment delivered on
5 March 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-237/
01 (1) between Alcon Inc., formerly Alcon Universal Ltd
and the Office for Harmonization in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case C-192/03 P)

(2003/C 158/22)

was brought before the Court of Justice of the European
Communities on 12 May 2003 by Alcon Inc.,
formerly
Alcon Universal Ltd, established in Hünenberg (Switzerland),
represented by S. Clark, Solicitor, and C. Morcom QC, with an
address for service in Luxembourg.

The Appellant claims that the Court should:

— set aside the judgment of the Court of First Instance
delivered on 5 March 2003, and that the contested
decisions of the Cancellation Division dated 15 December
1999 and of the First Board of Appeal dated 13 July
2001 be annulled;

— make an order for the payment of its costs.

Pleas in law and main arguments

The appellant submits that the decision of the Court of First
Instance of 5 March 2003 was wrong in law in a number of
respects. In particular the Court

(i)

failed to consider adequately or at all the specific require-
ments of Article 7(1)(d) of the Community Trade Mark
Regulation as to customary use, in the current language
or in the bona fide and established practices of the trade;

(ii) wrongly proceeded upon the assumption that mere
entries in directories or other reference sources by
themselves satisfied the requirements of Article 7(1)(d);

(iii) wrongly took into consideration material not published
or not shown to have been published within the European
Union prior to 1 April 1996 and in so doing failed to
address the distinction between the requirements of
Articles 7(1)(d) and 50(1)(b) of the Regulation, the former
alone being material for the purposes of the application
for a declaration of invalidity;

(iv)

failed to take into account
the evidence of Alcon’s
substantial policing of the trade mark BSS over a very
considerable period of time;

(v)

alternatively wrongly rejected the case put forward on
behalf of Alcon, that the mark BSS had in fact acquired
distinctive character as a result of use, thus meeting the
requirements of Article 51(2) of the Regulation.

An appeal against the judgment delivered on 5 March 2003
by the Second Chamber of the Court of First Instance of the
European Communities in case T-237/01 between Alcon Inc.,
formerly Alcon Universal Ltd and the Office for Harmonization
in the Internal Market (Trade Marks and Designs) (OHIM),

(1) OJ C 369, 22.12.2001, p. 13.