Case T-120/03: Action brought on 10 April 2003 by Synopharm GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, medicinal product, pharmaceutical product, trade-mark law

19.7.2003

EN

Official Journal of the European Union

C 171/29

Action brought on 24 March 2003 by Elisabeth von
Pezold against the Commission of the European Com-
munities

limit, which favours undertakings of less than 20 hectares, also
results in severe distortion of competition, in contravention of
Article 35 of Regulation No 1257/1999 (1).

(Case T-108/03)

(2003/C 171/50)

(Language of the case: German)

(1) Council Regulation (EC) No 1257/1999 of 17 May 1999 on
support for rural development from the European Agricultural
Guidance and Guarantee Fund (EAGGF) and amending and
repealing certain Regulations (OJ L 160, 26.06.1999, p. 80).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 March 2003 by Elisabeth von
Pezold, residing in Pöls (Austria), represented by R. von Pezold,
lawyer.

The applicant claims that the Court should:

— annul the approval of point 6.2.1.4.1. of the guidelines
on the implementation of the ‘other measures’ forming
the Austrian rural development programm
part of
ZI.21.200/50-II/00 of 27 July 2000, C III in Section 6,
headed ‘Forestry’, granted by the Commission decision of
14 July 2000 approving a rural development program-
ming document for the Republic of Austria for the period
from 2000 to 2006 (C(2000) 1973 final);

— in the alternative, if it finds that point 6.2.1.4.1. of those
guidelines has not been approved by the Commission,
deliver a judgment to that effect;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

approximately 3 500 hectares. She

The applicant owns a forestry undertaking with forests cover-
that
ing
point 6.2.1.4.1. of the Austrian guidelines on the implemen-
tation of the ‘rural development programm’ limits applications
for support for forests to a maximum of 20 hectares per
undertaking, and that this limit was approved by the contested
decision.

submits

As grounds for her action, the applicant submits that the
setting of a limit of 20 hectares constitutes support of
individual undertakings, rather than support of the forests per
se, as required by Regulation No 1257/1999. Moreover, the

Action brought on 10 April 2003 by Synopharm GmbH
& Co. KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-120/03)

(2003/C 171/51)

the

(Language of
case to be determined in accordance with
Article 131(2) of the Rules of Procedure — Language in which the
application was submitted: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
10 April 2003 by Synopharm GmbH & Co. KG, Barsbüttel
(Germany), represented by G. J. Hodapp, lawyer. Pentafarma-
Sociedade Técnico-Medicinal, LDA, Sacavém (Portugal) was
also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— annul Decision R 44/2002-3 of the Third Board of
Appeal of the Office for Harmonisation in the Internal
Market of 15 January 2003 in so far as the appeal was
dismissed;

— order the Office to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

The applicant

The word mark ‘DERMASYN’ for
goods in Classes 1, 3 and 5 (inter
alia, cosmetics, medicines, pharm-
aceutical
prep-
arations and disinfectants for the
human body) — Application No
662 403

sanitary

and

C 171/30

EN

Official Journal of the European Union

19.7.2003

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

Pentafarma-Sociedade

Técnico

The applicant claims that the Court should:

Mark or sign cited in
opposition:

The
Portuguese word mark
‘DERMAZIL’ for goods in Class 5
(inter alia, pharmaceutical prep-
arations and disinfectants)

Decision of the Oppo-
sition Division:

Registration refused in respect of
several goods in Classes 3 and 5

Decision of the Board of
Appeal:

Pleas in law:

Annulment of the decision of the
Opposition Division in respect of
certain goods in Class 5. Dismissal
of the remainder of the applicant’s
appeal.

— A similarity between the
goods compared can be seen
only in respect of goods in
Class 5.

— The final

syllables, which
alone are relevant, are clearly
different in both sound and
appearance.

— No likelihood of confusion

exists.

Action brought on 14 April 2003 by AGA AB against the
Commission of the European Communities

(Case T-122/03)

(2003/C 171/52)

(Language of the case: German)

— annul the decision of the European Agency for the
Evaluation of Medicinal Products of 4 February 2003,
Document No EMEA/2044;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant holds a Community marketing authorisation for
the medicinal product, INOmax, whose active ingredient is
nitrogen oxide (NO). On 25 January 2002, the competent
authority in France granted another undertaking a national
authorisation for a medicinal product called KINOX, whose
active ingredient is also nitrogen oxide. In response to that
authorisation, the applicant lodged an application with the
European Agency for the Evaluation of Medicinal Products
(EMEA) to initiate the procedure under Article 31 of Directive
2001/83/EC (1) in respect of medicinal products containing
nitrogen oxide. That application was rejected in the contested
decision on the ground that the applicant, as holder of a
Community marketing authorisation, is not entitled to make
such an application.

The applicant raises the following pleas in law:

— Infringement of essential procedural requirements. The
applicant submits that the contested decision was adopted
by staff in the secretariat of the EMEA, who, under the
relevant procedural provisions of Directive 2001/83/EC
and Regulation No 2309/93/EC (2) were not competent
to adopt such a decision. Instead, the decision on whether
to reject the application should have been taken by the
Committee for Proprietary Medicinal Products (CPMP) of
the EMEA.

— Failure to observe the principle of the right to be heard,
in so far as the applicant was not given any opportunity
to express its views on the matter before the decision to
reject the application on procedural grounds was adopted.

— Incorrect interpretation of Article 31 of Directive 2001/
83/EC. The applicant submits that, contrary to the
view of the EMEA, holders of Community marketing
authorisations for medicinal products for human use are
also entitled to lodge applications on the basis of that
article.

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 AGA AB,
whose registered office is in Lidingö (Sweden), represented by
B. Sträter and M. Ambrosius, lawyers.

(1) OJ L 311, 28.11.2001, p. 67.
(2) OJ L 214, 24.8.1993, p. 1.