Case T-4/04: Action brought on 5 January 2004 by R.K. Achaiber Sing against the Commission of the European Communities and Council of the European Union
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: Council of the European Union, European Commission, action for annulment (EU), animal disease, bird, health legislation, import

C 59/34

EN

Official Journal of the European Union

6.3.2004

— uphold Decision No 2880/2002 of 27 September 2002

of the Opposition Division;

Action brought on 5 January 2004 by R.K. Achaiber Sing
against the Commission of the European Communities
and Council of the European Union

— require OHIM to refuse the CTM Application;

— order Spa Monopole and/or OHIM to (a) bear the costs
of the Opposition proceedings (b) the proceedings before
the Board of Appeal, and (c) the costs of these proceed-
ings.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

S.A. Spa Monopole N.V.

The Community trade
mark concerned:

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The figurative mark ‘KINJI by SPA’
for goods in Classes 29 and 32
(e.g. fruit pulp and mineral and
aerated waters and other non-
alcoholic drinks containing fruit
juice)

The applicant

(No 427 237)

The Community trade mark ‘KIN-
NIE’
for goods
in Class 32 (Beers; non-alcoholic
drinks; preparations for making
beverages)

Decision of the Oppo-
sition Division:

Rejection of
application

the

trade mark

Decision of the Board of
Appeal:

Annulment of the Decision of the
Opposition Division and rejection
of the opposition

Grounds of claim:

— Violation of Article 8 (1)(b)
of Regulation (EC) No 40/
94;

— Breach of Article 73 of Regu-

lation (EC) 40/94;

— Likelihood of confusion on
the part of the public in all,
or alternatively in a signifi-
cant proportion of territories
within the European Com-
munity.

(Case T-4/04)

(2004/C 59/54)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties and Council of the European Union was brought before
the Court of First Instance of the European Communities on
5 January 2004 by R.K. Achaiber Sing, residing in Leiden
(Netherlands), represented by J.G.G. Wilgers.

The applicant claims that the Court should:

1.

2.

Primarily, declare that Decision 2000/666/EC contains a
measure having an equivalent effect to a quantitative and
qualitative restriction on imports between Member States
of the World Trade Organisation and that this decision is
at variance with Article 131 of the EEC Treaty, with the
result that it is null and void;

Primarily and in the alternative, order the European
Community to pay compensation in respect of
the
damage,
to be quantified, which the applicant has
incurred as a result of the obligations arising under
Decision 2000/666/EC;

3. Order the Community to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant imports live birds from non-member countries
and states that he is obliged under the contested decision to
incur costs for the establishment of a quarantine area. He states
further that, as he has recently discovered, he is obliged to
incur further costs by reason of the national provisions giving
effect to the contested decision.

the contested decision is at
The applicant submits that
variance with the Agreement establishing the World Trade
Organisation, and in particular with Articles 2(2) and 3 of the
Agreement on the Application of Sanitary and Phytosanitary
the contested decision
Measures.
constitutes a hidden barrier to trade which makes commerce
in live, non-protected birds practically impossible.

In the applicant’s view,