Case T-122/03: Action brought on 14 April 2003 by AGA AB against the Commission of the European Communities
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: European Commission, European Medicines Agency, action for annulment (EU), market approval, pharmaceutical product

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.