Case T-302/03: Action brought on 4 September 2003 by PTV Planung Transport Verkehr AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-11-01
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), software, trade-mark law

C 264/36

EN

Official Journal of the European Union

1.11.2003

The applicant claims that the Court should:

— annul the Council Regulation (EC) 960/2003 of 2 June,

insofar as it applies to the Applicant; and

— order the Council to pay the legal costs and expenses of

the procedure.

Pleas in law and main arguments

The applicant in the present case is a company formed under
the laws of India manufacturing recordable compact disks
(CD-Rs), rewritable compacts disks (CD-RWs) and read only
memory compact disks (CD-ROMs). In addition, it manufac-
tures other forms of storage media, and notably micro-
diskettes, in an export processing zone (EPZ).

Following a complaint lodged by the Community producers
of CD-Rs, grouped in Association CECMA, pursuant to which
the Commission announced the initiation of parallel anti-
dumping and anti-subsidy proceedings against imports into
the European Community of CD-Rs originating in India. The
anti-dumping proceedings having been terminated without the
adoption of measures, the present procedure concerns only
the countervailing proceedings against CD-Rs that culminated
in the contested Regulation, imposing countervailing duties of
7,3 % on imports of recordable compact disks originating in
India. (1).

In support of its application the applicant submits that:

— In determining 4,2 years as the period over which the
alleged subsidy should be allocated, the Council made a
manifest error of assessment in the determination of
the normal depreciation of the applicant’s plant and
machinery, and infringed Articles 5, 7(3) and 11(1) of the
Basic Anti-Subsidy Regulation and Article 253 EC.

— The contested Regulation should be invalid because
during the administrative procedure, an incomprehen-
sible explanation of the calculation of the 4.2 years was
provided to the applicant in violation of the rights of
defence, or, alternatively, in violation of Article 253.

— In analysing the consequent impact of imports from India
into the Community industry and also the question as to
whether such imports were causing injury to this industry
the Council failed to carry out an objective examination
of all the relevant evidence as required by Articles 8(2)
and (6) of the Basic Anti-Subsidy Regulation and/or
committed a series of manifests errors of assessment.

— In determining the injury caused by another known
injurious factor, namely imports from Taiwan were
not attributed to the subsidised imports, the Council
committed a manifest error of assessment in the appli-
cation of Articles 8(6) and (7) of the Basic Anti-Cubsidy
Regulation.

— In determining that injury caused by another known
injurious factor, namely the alleged anti-competitive
discrimantory pricing by the Community supplier of
technology, was not attributed to the subsidied imports,
the Council did not follow the correct procedures for the
application of Articles 8(6) and (7) of the Basic anti-
Subsidy Regulation.

(1) Council Regulation (EC) No 960/2003 of 2 June 2003 imposing
a definitive countervailing duty on imports of recordable compact
disks originating in India (OJ L 138 of 5.6.2003, p. 1).

Action brought on 4 September 2003 by PTV Planung
Transport Verkehr AG against the Office for Harmonis-
ation in the Internal Market (Trade Marks and Designs)
(OHIM)

(Case T-302/03)

(2003/C 264/64)

(Language of the case: German)

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
4 September 2003 by PTV Planung Transport Verkehr AG,
Karlsruhe (Germany), represented by F. Nielsen, lawyer.

The applicant claims that the Court should:

— annul the decision of 1 July 2003 of the Second Board of
Appeal of the Office for Harmonisation in the Internal
Market (Case R 1046/2001-2);

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

1.11.2003

EN

Official Journal of the European Union

C 264/37

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark
sought:

The word mark ‘map&guide’ —
application No 2089829

Applicant
munity trade mark:

for

Com-

Goods or services:

Goods and services in Classes 9,
41 and 42 (computer software,
conducting training events for
computer software and computer
programming)

Community trade mark
sought:

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

Mark or sign cited in
opposition:

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Pleas in law:

Decision
before
Appeal:

contested
the Board of

Refusal by the examiner to register
the mark in respect of ‘computer
software’ and ‘computer program-
ming’

Decision of the Board of
Appeal:

Dismissal of the appeal

Pleas in law:

Infringement of Article 7(1)(b) of
Regulation (EC) No 40/94

Action brought on 8 September 2003 by Bayer AG
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-304/03)

(2003/C 264/65)

The applicant in this casey

The word mark ‘NEXAVAR’ for
goods in Class 5 (pharmaceutical
and veterinary preparations, diag-
nostic preparations for medicinal
purposes)
Application
—
No 1534213

Sanofi-Synthelabo
Anonyme)

(Société

The national word mark ‘BESA-
VAR’ for goods in Class 5 (pharm-
aceutical preparations)

Rejection of the opposition

Annulment of the decision of the
Opposition Division and refusal
of the application

There is no similarity between
the marks which could lead to
confusion

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

Action brought on 4 September 2003 by WHG Westdeut-
sche Handelsgesellschaft mbH against
the Office for
Harmonisation in the Internal Market (Trade marks and
Designs) (OHIM)

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
8 September 2003 by Bayer AG, Leverkusen (Germany),
represented by M. Wolpert, lawyer. Sanofi-Synthelabo (Société
Anonyme), Paris, was also a party to the proceedings before
the Board of Appeal.

(Case T-307/03)

(2003/C 264/66)

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

The applicant claims that the Court should:

— amend the decision of 4 June 2003 of the Fourth Board
of Appeal of the Office for Harmonisation in the Internal
Market (Case R 452/2002-4) and reject the opposition;

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

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
4 September 2003 by WHG Westdeutsche Handelsgesellschaft
lawyer. Kaufring AG,
mbH, represented by U. Schuster,
Düsseldorf (Germany) was also a party to the proceedings
before the Board of Appeal.