Case T-306/03: Action brought on 9 September 2003 by Volkswagen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2003-11-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), air conditioning, heating, physical process, trade-mark law

C 289/26

EN

Official Journal of the European Union

29.11.2003

Action brought on 21 August 2003 by the Consorzio per
la Tutela del Formaggio Grana Padano against the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM)

(Case T-291/03)

(2003/C 289/55)

(Language of the case: Italian)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 21 August 2003 by the Consorzio
per la Tutela del Formaggio Grana Padano, represented by
lawyers.
Paolo Perani, Paolo Colombo and Alex Schmitt,
Biraghi S.p.A. was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

— annul the registration of the Community trade mark
No 736.934 GRANA BIRAGHI owned by Biraghi S.p.A.
in so far as, in particular it is in conflict with the combined
provisions of Article 142 of Regulation (EEC) No 40/94
and Article 13(1) of Regulation (EEC) No 2081/92.

Pleas in law and main arguments

Applicant
munity trade mark:

for Com-

Biraghi S.p.A.

Community trade mark Word mark ‘GRANA BIRAGHI’
— Application No 736.934 for
sought:
products in Class 29: ‘Cheese, in
particular cheese from cows’ milk,
mature cheese, hard cheese, whole
cheeses, portions of cheese with
or without rind, packaged cheese
of various sizes, grated and pack-
aged cheese.’

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

Mark or sign cited in
opposition:

The applicant Consorzio.

Numerous national and inter-
national registrations and appli-
cations to register the trade marks
‘GRANA’ and ‘GRANA PADANO’
and trade marks containing those
terms in combination with figu-
rative elements and words for
products in Class 29.

Decision of the Oppo-
sition Division:

Refusal of
registration.

the application for

Decision of the Board of
Appeal:

Annulment of
the Opposition
Division’s decision and rejection
of the opposition.

Pleas in law:

— The term ‘GRANA’

is not

generic.

— Breach of Article 13(1)(a),
(c) and (d) of Council
(b),
Regulation (EEC) No 2081/
92 of 14 July 1992 on the
protection of geographical
indications and designations
of origin for agricultural
products and foodstuffs (1),
and of the national rules on
company designations of
origin.

— Likelihood

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

(1) OJ L 208 of 24.7.92, p. 1.

Action brought on 9 September 2003 by Volkswagen AG
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-306/03)

(2003/C 289/56)

(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
9 September 2003 by Volkswagen AG, Wolfsburg (Germany),
represented by S. Risthaus, lawyer.

The applicant claims that the Court should:

— annul the decision of 7 July 2003 of the Second Board
the Office for Harmonisation in the
in Case

(Trade Marks and Designs)

of Appeal of
Internal Market
R 1012/2001-2;

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

29.11.2003

EN

Official Journal of the European Union

C 289/27

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark
sought:

The word mark ‘CLIMATIC’ —
Application No 1705557

The applicant runs a medium-sized publishing company and
publishes the Leipzig magazine ‘Kreuzer’. The magazine is
financed inter alia by tobacco advertising.

Goods or services:

Goods and services in Classes 11,
12 and 37 (inter alia, apparatus
for heating,
steam generating,
refrigerating, drying and venti-
lating; repair)

Decision
before
Appeal:

contested
the Board of

Refusal by the examiner to register
the mark in respect of goods and
services in Classes 11 and 37

Decision of the Board of
Appeal:

Dismissal of the appeal

The applicant seeks a declaration that Article 3(1) of Directive
2003/33/EC is void.
It argues that the directive breaches
Community law from several points of view. The directive
infringes Article 251 EC as the published version of the
directive differs from that adopted by the Council and the
Parliament. Further, the directive breaches Article 95 EC, as, in
the case of a local or regional magazine such as that produced
by the applicant, there are no internal market implications and
the Community legislature thus has no role to play.

Pleas in law:

— Infringement of Article 74(1)
of Regulation (EC) No 40/94

— Legally incorrect application
of Article 7(1)(b) of Regu-
lation (EC) No 40/94

The applicant submits further that the directive is vague and
thus breaches the constitutional requirement of certainty. It
also infringes the requirement under Article 253 EC that
reasons should be stated, as no reasons are actually given
regarding the existence of obstacles to trade which could be
removed by the directive.

Furthermore, the applicant submits that the directive infringes
the freedom of expression safeguarded by Article 11 of the
Charter of fundamental rights of the European Union and
Article 10(1) of the ECHR. That includes the right to ‘commer-
cial speech’. The directive prejudices the placing of advertising
and positive editorial reporting, without thereby in any way
allowing the objective of the directive to be attained. Finally,
the directive infringes entrepreneurial freedom, the property
rights of the applicant and the prohibition on going beyond
what is necessary laid down by the third paragraph of Article 5
EC.

(1) OJ 2003 L 152, p. 16.

Action brought on 11 September 2003 by Kreuzer
Medien GmbH against the European Parliament and the
Council of the European Union

(Case T-310/03)

(2003/C 289/57)

(Language of the case: German)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice
of the European Communities on 11 September 2003 by
Kreuzer Medien GmbH, represented by Dr U. Kornmeier and
Dr D. Valbert.

The applicant claims that the Court should:

— declare Article 3(1) of Directive 2003/33/EC of

the
European Parliament and of the Council of 26 May 2003
on the approximation of
the laws, regulations and
administrative provisions of the Member States relating
to the advertising and sponsorship of tobacco products (1)
void;

— order the defendant to bear the costs.

Action brought on 15 September 2003 by Hans-Peter
Wilfer against the Office for Harmonisation in the Internal
Market (Trade marks and Designs) (OHIM)

(Case T-315/03)

(2003/C 289/58)

(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
15 September 2003 by Hans-Peter Wilfer, represented by
A. Kockläuner, lawyer.