Case T-379/03: Action brought on 17 November 2003 by Peek & Cloppenburg KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-02-07
Institutions: Court of First Instance
Subjects: EU law, European Union Intellectual Property Office, action for annulment (EU), clothing industry

C 35/12

EN

Official Journal of the European Union

7.2.2004

Pleas in law and main arguments

The applicant claims that the Court should:

By the contested decision the Commission decided that
Germany’s measure to promote the use of insulating materials
produced from renewable raw materials is to be considered
compatible with the EC Treaty. The Commission reached this
decision on the basis that, although the measure constitutes
aid, it is, under Article 87(3)(c) EC, compatible with the EC
Treaty since the promoted insulating materials produced from
renewable raw materials clearly have advantages for the
environment over ‘traditional’ insulating materials.

The applicant submits that the decision infringes essential
procedural
requirements. The Commission should have
initiated the preliminary examination procedure in accordance
with Article 88(2) EC and Article 4(4) of the regulation on
State aid procedure, since it encountered objectively serious
difficulties in assessing the measure.

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation of 27 August 2003 in Case
R 105/2002-4;

— order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark Word mark ‘Cloppenburg’ —
Application No 1920685 in
sought:
respect of Class 35 — retail trade
services.

Decision
before
Appeal:

contested
the Board of

Examiner’s refusal to register.

Furthermore, the decision infringes Article 87 EC. The Com-
mission’s decision that the measure is compatible with the
common market under Article 87(3)(c) EC because of clear
advantages for the environment was based upon insufficient
findings of fact.

Decision of the Board of
Appeal:

Dismissal
appeal.

of

the

applicant’s

Pleas in law:

Infringement of Article 7(1)(c) of
Regulation No 40/94 (1).

Finally the applicant claims that the decision unjustifiably
disadvantages those insulating materials designated by the
Commission as ‘traditional’, especially mineral-based insulating
materials, but also insulating materials produced from renew-
able raw materials which do not carry the quality mark
‘natureplus’. The decision thus infringes the principles of
proportionality and non-discrimination and therefore infringes
fundamental principles of Community law.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 18 November 2003 by Miles Hand-
elsgesellschaft International mbH against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

Action brought on 17 November 2003 by Peek & Clop-
penburg KG against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case T-385/03)

(2004/C 35/20)

(Case T-379/03)

(2004/C 35/19)

(Language of the case: 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
17 November 2003 by Peek & Cloppenburg KG, Düsseldorf
(Germany), represented by U. Hildebrandt, lawyer.

(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)

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
18 November 2003 by Miles Handelsgesellschaft International
mbH, Norderstedt (Germany), represented by A. Deutsch,
lawyer. Biker Miles Motorrad Handels- und Vertriebsgesell-
schaft mbH, Berlin, was also a party to the proceedings before
the Board of Appeal.