Case T-442/03: Action brought on 31 December 2003 by SIC-Sociedade Independente de Comunicação, S.A. against the Commission of the European Communities
Date: 2004-03-20
Institutions: Court of First Instance
Subjects: European Commission, Portugal, State aid, action for annulment (EU), cable distribution, public service

20.3.2004

EN

Official Journal of the European Union

C 71/31

The applicant claims that the Court should:

— annul the contested decision (1) in so far as it refused
application No 1 358 480 for registration of a Com-
munity trade mark;

— grant application No 1 358 480 for registration of a

Community trade mark;

— in the alternative, refer the case back to the Board of

Appeal so that it may give a ruling on the matter;

— order the defendant Office to pay the costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

The applicant

Pleas in law:

and

and certain goods and services in
Class 42 (hospitals, convalescent
homes,
sanatoriums; medical,
hygienic and beauty care; medical
research, bacteriology and chemi-
cal
research; development of
medicines, foodstuffs with phar-
maceutical properties and other
health care products, and con-
clinical
ducting medical
examinations, consultancy and
support for others for these activi-
ties;
industrial
in particular medical,
research,
bacteriological
chemical
research; opticians’ services; con-
sultancy for health care pro-
fessionals
in the development,
establishing and conducting of
therapy programmes and the test-
ing of the aforesaid therapy pro-
grammes by means of studies).
Dismissal
opponent’s
of
appeal as to the remainder.

scientific

and

the

or

— No likelihood of confusion
within
of
Article 8(1) and (2) of Regu-
lation (EC) No 40/94.

the meaning

— No evidence of use of the
opposed marks in the Euro-
pean Community justifying
refusal of the application.

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:

figurative mark

‘AMS
The
Advanced Medical Services’
for
goods and services in Classes 5,
10 and 42 — Application No
1 358 480.

American Medical Systems, Inc.

The UK word mark
‘AMS’
(No 2 061 585), the figurative
mark ‘American Medical System’
registered in several States of the
European Union and the regis-
tered
‘AMS
word marks
AMBICOR’, ‘AMS SECURO-T’ and
‘AMERICAN MEDICAL SYSTEMS’
for goods in Class 10.

Refusal of the trade mark appli-
cation in respect of goods in
Class 10. Rejection of the oppo-
sition in so far as the application
concerns goods and services in
Classes 5 and 42.

Refusal of the trade mark appli-
cation in respect of certain goods
in Class 5 (Pharmaceutical, vet-
erinary and sanitary preparations;
dietetic substances adapted for
medical use; plasters, materials for
dressings; material for stopping
teeth, dental wax; disinfectants)

(1) Decision of

the Fourth Board of Appeal of

the Office for
Harmonisation in the Internal Market (Trade Marks and Designs)
in Case R 671/2002-4.

Action brought on 31 December 2003 by SIC-Sociedade
Independente de Comunicação, S.A. against the Com-
mission of the European Communities

(Case T-442/03)

(2004/C 71/59)

(Language of the case: Portuguese)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

C 71/32

EN

Official Journal of the European Union

20.3.2004

European Communities on 31 December 2003 by SIC-
Sociedade Independente de Comunicação, S.A, established in
Carnaxide (Portugal), represented by Carlos Botelho Moniz,
Eduardo Maia Cadete and Margarida Rosado da Fonseca,
lawyers, with an address for service at Rua Castilho, 75, 1o,
1250-068, Lisbon (Portugal).

The applicant claims that the Court should:

annul the decision of the European Communities C(2003)
3526 (final) of 15 October 2003 on ad-hoc measures applied
to RTP by Portugal.

Pleas in law and main arguments

1.

2.

Breach of the duty to act diligently and impartially;

Errors of fact;

3. No basis for the finding in the contested decision on

‘investment costs’;

4.

5.

Error of law concerning the failure to classify certain
measures as State aid;

Error of law as to the conditions for the application of
Article 86(2) EC.

As regards the breach of the duty of diligence, the applicant
maintains that the contested decision represented the final
stage in the Commission’s failure to act transparently, impar-
tially and diligently in the way it conducted the procedure
culminating in the adoption of
the decision, which was
conducted throughout with a view to justifying the unjustifia-
ble and omitting facts essential for the purpose of an accurate
analysis of the way in which RTP ‘fulfilled’ its public service
obligations.
the Commission did not act
neutrally and failed to maintain an equal distance between the
interests in play, since it did not thoroughly weigh up the
legally protected interests prior to taking action.

It submits that

In relation to the errors of fact, the applicant maintains, in
particular, that no regard was had to the additional assistance
granted by the State to the public operator in 1998, whilst
sums which had not been verified by independent auditors
were taken into account as ‘investment costs’. In the applicant’s
submission, the Commission also failed to check that RTP had
actually fulfilled its public service obligations.

into account, as investment costs, sums relating to the
acquisition of assets when the auditors confirmed that there
was not even any evidence that the assets actually existed.

The applicant argues that the fact that certain measures were
found not to constitute State aid within the meaning of
Article 87(1) EC amounted to an error of law. Those measures
included the exemption from paying fees and emoluments,
postponement of the payment of fees for the use of the
television broadcasting network and a bond issue.

The applicant also claims that the decision errs in law as
regards the application of Article 86(2) EC, given that the
Portuguese Government did not award public service television
broadcasting to RTP on the basis of a transparent and non-
discriminatory procedure.

laid down itself

Furthermore, the Commission did not observe the criteria for
in the
applying Article 86(2), which it
‘Communication on the application of State aid rules to public
service broadcasting’. The applicant also maintains that, as
regards the supply by RTP of a public service, the Commission’s
decision is not founded on any documentary evidence as to
whether RTP actually fulfilled the public-service obligations
laid upon it by the State, since, in practice, the facts of the case
suggest that, as regards the relevant period, the service which
RTP was contractually bound to provide was not properly
supplied.

Action brought on 2 January 2004 by Cemender Kork-
maz, The Corner House and the Kurdish Human Rights
Project against the Commission of the European Com-
munities

(Case T-2/04)

(2004/C 71/60)

(Language of the case: English)

The applicant claims that there is no basis for taking the
‘investment costs’ into account in the contested decision, since
the Commission fails to state the reasons why it took the
relevant sums into account in its final decision and why it,
inconsistently, did not take into account the sums in RTP’s
‘Reports on the Public Service’ but those in RTP’s financial
accounts. It also fails to explain why it was possible to take

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 January 2004 by Cemender
Korkmaz, Flers, (France), The Corner House, Newton, (United
Kingdom), and the Kurdish Human Rights Project, London,
(United Kingdom), represented by P. Moser, Barrister, and
A. Stock, lawyer, with an address for service in Luxembourg.