Action brought on 2 February 2004 by the Autonomous Region of the Azores against the Council of the European Union
Date: 2004-04-17
Institutions: Court of First Instance
Subjects: Azores, Council of the European Union, EU waters, action for annulment (EU), fishing rights

17.4.2004

EN

Official Journal of the European Union

C 94/47

— Reject definitely and in its entirety the opposition to regis-
tration of the mark applied in respect of all the classes
where it was successful,

— Order the Office and the intervener to pay the costs,
including those incurred in opposition proceedings and
before the Board of Appeal.

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

The Applicant.

Trade mark concerned:

of

Proprietor
the
opposing trade mark or
sign:

Opposing trade mark or
sign:

Decision of the Opposi-
tion Division:

trade mark ‘Ferró’

Figurative
-
Application No 1 1 010 099 for
goods and services in classes 29,
30 and 42.

Ferrero oHG mbH.

trade mark

‘FERRERO’
Word
(German trade mark registration
No 956 671) for goods in classes
5, 29, 30, 32 and 33.

the opposi-
Partial upholding of
tion for the following goods in
class 30: ‘Coffee, tea, sugar, artifi-
cial coffee, flour and preparation
made from cereals, bread, biscuits,
ices,
and confectionery,
pastry
syrup, yeast, baking powder, all
kinds
preparations,
honey, treacle’.

bread

of

the Board

Rejection of the appeal.

Decision of
of Appeal:

Pleas in law:

The applicant claims that the Court should:

— Annul Articles 3 and 11 and the Annex to Council Regu-
lation 1954/2003 in so far as: a) They provide for the
fishing effort under the Regulation to be determined by
reference only to the target species and the ICES/CECAF
area but not also by reference to the type of fishing gear
used, whether fixed or towed; b) They exclude from the
operation of Articles 3 and 11 demersal species covered by
Regulation 2347/2002.

— Annul Article 15 of Council Regulation 1954/2003 in so
far as the repeal of Council Regulations 685/95 and
2027/95: a) Removes the power of the Community to
determine fishing effort by reference not only to target
species and ICES/CECAF area but also by reference to the
type of fishing gear used (Articles 3(1), 6 and Annex 1 of
Regulation 685/95 and Article 2 and Annex of Regulation
2027/95) and removes the determination of same which
had been effected by Regulation 2027/95; b) Removes the
power to determine a maximum annual fishing effort by
area in respect of demersal species covered by Regulation
2347/2002 and removes the determination of same which
had been effected by Regulation 2027/95; c) Removes the
exclusion of access of Spanish vessels to island waters
under the sovereignty or jurisdiction of Portugal in ICES
Area X and CECAF for fishing of tuna or tuna-like species
(Annex III, para. 3 of Regulation 685/95); d) Is capable of
taking effect on 1 August 2004, whether or not a Regu-
lation under Articles 11(2) or (3) of Regulation 1954/2003
has entered into force.

— Annul Article 5(1) of Council Regulation 1954/2003 in so
far as it does not maintain the exclusion of access of
Spanish vessels to island waters under the sovereignty or
jurisdiction of Portugal
in ICES Area X and CECAF for
fishing of tuna or tuna-like species.

Infringement of Article 8(1)(b) of
Council Regulation 44/94.

— Annul Article 13(b) of Council Regulation 1954/2003
insofar as it exempts Articles 19a(3), 19b, 19c, 18d and
19e(3) of Regulation (EEC) No. 2847/93 from application
in the waters under the sovereignty or jurisdiction of
Portugal around the Azores.

— Order the Council to pay the costs incurred by the Appli-

cant in the present proceedings.

Action brought on 2 February 2004 by the Autonomous
Region of the Azores against the Council of the European
Union

Pleas in law and main arguments:

(Case T-37/04)

(2004/C 94/131)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 2 February 2004 by the Autonomous Region
of the Azores, (Portugal), represented by M. Renouf, S. Crosby
and C. Bryant, Solicitors.

the

The Applicant claims the partial annulment of Council Regu-
lation 1954/2003 (1) which replaces
fishing regime
governing the Azorean fisheries. The applicant
invokes a
number of alleged procedural violations in the adoption of the
regulation, which would justify its annulment as requested by
the applicant. These procedural violations comprise failure to
properly consult the European Parliament; failure to take into
account evidence of an economic,
technical, scientific and
environmental nature; and failure to provide an adequate state-
ment of reasons for the act adopted.

C 94/48

EN

Official Journal of the European Union

17.4.2004

The Applicant further invokes a number of alleged substantive
law violations by the contested regulation, namely:

— breach of

the principle of relative stability and related
in particular
provisions of the Common Fisheries Policy,
Article 33 EC and Regulation 2371/2002 (1) Official Journal
L 358, 31/12/2002 P. 0059 - 0080

— breach of Article 299 paragraph 2 EC

— breach of Articles 6 and 174 EC, and of the environmental
law principles that is to say, the precautionary principle,
the principle of preventive action, the principle of rectifica-
tion of damage at source and the principle that the polluter
should pay.

— breach of

the fundamental objectives of
Article 158 EC and of the principle of proportionality

the Treaty, of

— breach of mandatory public international law requirements

and thus of Article 300(7) EC

— breach of Regulation 1275/94 (2) Official Journal L 140,
03/06/1994 P. 0001-0002 adopted to facilitate the integra-
tion of Spain and Portugal into the general scheme of the
Common Fisheries Policy.

(1) Council Regulation (EC) No 1954/2003 of 4 November
2003 on the management of the fishing effort relating to
certain Community fishing areas and resources and modi-
fying Regulation (EC) No 2847/93 and repealing Regula-
tions (EC) No 685/95 and (EC) No 2027/95 Official Journal
L 289 , 07/11/2003 P. 0001 - 0007

(1) Council Regulation (EC) No 2371/2002 of 20 December
2002 on the conservation and sustainable exploitation of
fisheries resources under the Common Fisheries Policy

(2) Council Regulation (EC) No 1275/94 of 30 May 1994 on
adjustments to the arrangements in the fisheries chapters of
the Act of Accession of Spain and Portugal

Action brought on 4 February 2004 by Sunplus Tech-
nology Co. Ltd., against the office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-38/04)

(2004/C 94/132)

(Language of the case: to be determined pursuant to article 131(2) of
the Rules of Procedure language in which the case was submitted:
English)

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
February 2004 by Sunplus Technology Co. Ltd., Hsin-Chu,

Taiwan, represented by Dr H. Eichmann, Mr G. Barth, Dr U.
Blumenröder, Ms C. Niklas-Falter, Dr M. Kinkeldey, Dr K.
Brandt, Ms A. Franke, Ms U. Stephani, Dr B. Allekotte, Dr
E.Pfrang, Ms K. Lochner, Ms B. Ertle, Ms Christine Neuhierl and
Ms Sabine Prückner, lawyers.

Sun Microsystems, Inc., was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) in Case R 642/2000-4 of 7 October
2003;

— order the costs of the proceedings to be borne by the defen-

dant.

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Sunplus Technology Co. Ltd.

The Community trade
mark sought:

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Mark or sign cited in
opposition:

The figurative mark ‘SUNPLUS’ for
certain goods in class 9 (Chips;
semi-conductors; micro-processing
(trade
chips; program cards;...)
mark application No 214346)

Sun Microsystems Inc.

The national verbal and figurative
marks ‘SUN’ for goods in class 9
(computers; magnetic and elec-
tronic data carriers;...)

Decision of the Opposi-
tion Division:

Rejection of the trade mark appli-
cation

Decision of
of Appeal (1):

the Board

Dismissal of
by the applicant

the appeal brought

Pleas in law:

Infringement of Article 8(1) (b) of
Council
(EC) No
40/94 (2) in that there is no likeli-
hood of confusion.

Regulation

(1) Decision of the Fourth Board of Appeal of the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) in Case R 642/2000-4 of 7 October 2003

(2) Council Regulation (EC) No 40/94 of 20 December 1993

on the Community trade mark (OJ 11, p. 1)