Case T-131/03: Action brought on 17 April 2003 by Gerolsteiner Brunnen GmbH & Co. against the Office for Harmonisation in the Internal Market
Date: 2003-07-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beverage industry, trade-mark law

5.7.2003

EN

Official Journal of the European Union

C 158/23

Action brought on 17 April 2003 by Alcon Inc. against
the Office for Harmonisation in the Internal Market

Action brought on 17 April 2003 by Gerolsteiner Brun-
nen GmbH & Co. against the Office for Harmonisation in
the Internal Market

(Case T-130/03)

(2003/C 158/42)

(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)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 17 April 2003 by Alcon Inc.,
Hünenberg, Switzerland, represented by Mr G. Breen, Solicitor,
with an address for service in Luxembourg. A further party to
the proceedings before the Board of Appeal was Biofarma
(plc).

The applicant claims that the Court should:

— annul the contested decision

— order OHIM to pay the costs

Pleas in law and main arguments

(Case T-131/03)

(2003/C 158/43)

(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)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 17 April 2003 by Gerolsteiner
Brunnen GmbH & Co., Gerolstein, Germanty, represented by
Dr A. Ebert-Weidenfeller,
lawyer. A further party to the
proceedings before the Board of Appeal was Kerry Group p.l.c.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the
Office for Harmonization in the International Market
(Trade Marks and Designs) of February 13, 2003 (case
R275/2002-1) and to order costs against the OHIM

Applicant
munity trade mark:

for

Com-

The Applicant

Pleas in law and main arguments

Community trade mark Word mark ‘TRAVATAN’ —
Application No 847590,
for
sought:
products in class 5 (ophthalmic
pharamaceutical poducts)

Applicant
munity trade mark:

for

Com-

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

BIOFARMA PLC

Community trade mark
sought:

Mark or sign cited in
opposition:

Italian word mark ‘TRIVASTAN’
for class 5 products.

Decision of the Oppo-
sition Division:

Refusal of the application.

Decision of the Board of
Appeal:

Refusal of the appeal.

Kerry Group PLC.

Figurative mark ‘KERRY Spring’
— Application No 0000443135,
for products in class 32 (spring,
mineral and aerated waters and
other non-alcoholic drinks, fruit
drinks and fruits juices, fruit fla-
vored spring and mineral waters).

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

The applicant.

Mark or sign cited in
opposition:

German trademark registration
No 1100746 for the word ‘GER-
RI’., for products in class 5 and 32.

C 158/24

EN

Official Journal of the European Union

5.7.2003

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Pleas in Law:

Refusal of the Opposition.

Rejection of the Appeal.

Infringement of Article 8(1)(b) of
Regulation No. 40/94.

Action brought on 18 April 2003 by Common Market
Fertilizers (CMF) against the Commission of the European
Communities

(Case T-134/03)

(2003/C 158/44)

(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 18 April 2003 by Common
Market Fertilizers (CMF), a company established in Brussels,
represented by Alastair Sutton and Nathalie Flandin, lawyers.

The applicant claims that the Court should:

— annul Commission Decision REM 02/02;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is a wholesaler of chemical products and in
particular nitrogen solutions. It applied to the French customs
authorities, under Article 239 of Regulation (EC) No 2913/
92 (1), for remission of duties in accordance with Article 3(1)
of Regulation (EC) No 3319/94 (2). That application was
forwarded by the French authorities to the defendant which,
by its contested decision, refused remission.

In support of its action, the applicant relies on pleas in law
based both on alleged infringements of essential procedural
requirements and on the substance. With regard to essential
procedural requirements, the applicant first alleges infringe-
ment of Article 7 of the EC Treaty and of Article 5 of
Council Decision No 468/1999 (3). The applicant argues that
application of the principle of weighting of votes, provided for
by Article 205 EC, to the final vote within the Customs
Code Committee, repayment section, resulted in no qualified

majority being obtained and that therefore no opinion was
delivered by the Committee, which precluded the defendant
from itself taking a decision as it did. The applicant also alleges
infringement of Article 906 of Regulation No 2454/93 (4),
inasmuch as the defendant did not forward to the Member
States a copy of the case documents received by the French
Customs Authorities, within 15 days following their receipt,
as well as infringement of the rules of procedure of the
Customs Code Committee, inasmuch as the applicant’s sub-
missions were not sent to the permanent representations and
to the members of the Committee within 14 days prior to the
date of the meeting. It also alleges infringement of Article 3 of
Regulation No 1/1958 (5), maintaining that certain representa-
tives of the Member States did not receive a copy of the case
documents in their own national language, as well as breach
of the right to a fair hearing in so far as the defendant refused
the applicant the right to a hearing and did not give it access
to the documents required under Regulation No 1049/
2001 (6). Finally, the applicant alleges failure to state reasons
for the contested decision.

With regard to the substance, the applicant maintains that the
defendant made a manifest error of assessment in considering
that the requirements of Article 239 of Regulation No 2913
were not satisfied. The applicant considers that it is in a special
situation by reason of the fault committed by its customs
agent, who employed a fictitious bonded warehouse without
the applicant’s knowledge, and the absence of circumvention
of the provisions of Regulation No 3319/94. It also states that
no dishonest conduct can be imputed to it and that it has not
displayed any manifest negligence.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
(OJ L 302,

establishing the Community Customs Code
19.10.1992, p. 1).

(2) Council Regulation (EC) No 3319/94 of 22 December 1994
imposing a definitive anti-dumping duty on imports of urea
ammonium nitrate solution originating in Bulgaria and Poland,
exported by companies not exempted from the duty, and col-
lecting definitively the provisional duty imposed (OJ L 350,
31.12.1994, p. 20).

(3) 1999/468/EC: Council Decision of 28 June 1999 laying down the
procedures for the exercise of implementing powers conferred on
the Commission (OJ L 184, 17.7.1999, p. 23).

(4) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code
(OJ L 253, 11.10.1993, p. 1).

(5) EEC Council: Regulation No 1 determining the languages to be
used by the European Economic Community (OJ, English Special
Edition 1952-1958, p. 59).

(6) Regulation (EC) No 1049/2001 of the European Parliament and
of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents (OJ
L 145, 31.5.2001, p. 43).