Action brought on 20 February 2004 by Anheuser-Busch, Incorporated against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-04-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beer, trade-mark law

17.4.2004

EN

Official Journal of the European Union

C 94/63

Action brought on 19 February 2004 by Yves Franchet
and Daniel Byk against the Commission of the European
Communities

(Case T-70/04)

(2004/C 94/158)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 February 2004 by Yves Franchet
and Daniel Byk,
represented by
residing in Luxembourg,
Georges Vandersanden and Laure Levi, lawyers.

The applicants claim that the Court should:

— annul the tacit decision of the Commission of the European
Communities refusing to grant the applicants' application
for access to various documents in the possession of that
institution and the Commission decision of 19 December
2003 rejecting the confirmatory application submitted by
the applicants on 2 December 2003;

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicants object to the defendant's refusal to give them
access to certain documents relating to the EUROSTAT file. In
issue is,
in particular, the final report of the Internal Audit
Service (IAS) and the annexes to the report of the IAS of 7 July
2003.

The defendant bases its refusal on the exception laid down in
the third indent of Article 4(2) of Regulation (EC) No
1049/2001 of the European Parliament and of the Council of
30 May 2001 regarding public access to European Parliament,
Council and Commission documents (1), namely the protection
of the purpose of inspections, investigations and audits.

In support of their claims, the applicants argue:

— gives a broad meaning in the contested decision to the

exceptions it relies on;

— has clearly wrongly assessed the elements of the case;

— has failed to evaluate the applications for access in this case
in the light of the actual content of the documents in rela-
tion to the exceptions relied on, even assuming that they
can be relied upon. In addition, it did not give reasons why
partial communication could not have been envisaged;

— has failed to weigh up the interests in question.

(1) OJ L 145 of 31.5.2001, p.43

Action brought on 20 February 2004 by Anheuser-Busch,
Incorporated against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-71/04)

(2004/C 94/159)

(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 20
Incorporated, St. Louis,
February 2004 by Anheuser-Busch,
Missouri, USA, represented by Dr V.von Bomhard, Dr A. Renck
and Dr A. Pohlmann, lawyers.

Budejovicky Budvar, narodni podnik was a further party to the
proceedings before the Board of Appeal.

— infringement of Articles 2 and 4 of the abovementioned
regulation, of the fundamental right of access to documents
and of the principle of proportionality;

The applicant claims that the Court should:

— the existence of a manifest error of assessment;

— disregard of the duty to state reasons.

— annul Decision R 1000/2001-2 of 3 December 2003 of the
Board of Appeal of the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) inasmuch as it
rejected the contested mark ‘AB GENUINE BUDWEISER
KING OF BEERS’ for goods in Class 32

They take the view that the defendant:

— order the cost of proceedings to be borne by the defendant

C 94/64

EN

Official Journal of the European Union

17.4.2004

Pleas in law and main arguments:

— Declare the Commission's decision void;

Applicant
munity trade mark:

for

Com-

Anheuser-Busch Inc.

— Order the Commission to pay the costs.

Community trade mark
sought:

Figurative mark ‘AB GENUINE
BUDWEISER KING OF BEERS’for
goods in class 32 (beer etc.)

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

Mark or sign cited in
opposition:

Budejovicky Budvar

Word national mark ‘BUDWEISER’

Decision of the Opposi-
tion Division:

Registration refused

Decision of
of Appeal:

Pleas in law:

the Board

Appeal rejected

Infringement of Articles 42 (2), (3)
of Regulation 40/94.
In the
context of this plea, the applicant
contends that
the proof of use
submitted by the opponent was
insufficient to sustain genuine use.
Infringement of Article 8 (1) (b) of
Regulation 40/94.
In this
applicant
context,
submits that there is no likelihood
of confusion between the marks in
question.

the

Pleas in law and main arguments

The applicant disputes the decision of
the Commission to
refuse to pay her the expatriation allowance under Article 4 of
Annex VII to the Staff Regulations on the ground that her
professional activities in Brussels could not be considered to be
work done for another Member State.

In support of her application, the applicant submits that the
Commission has committed an error in its assessment of the
facts and of her position in fact. According to the applicant,
her habitual residence and the centre of her interests were in
Austria.

The applicant submits further that the Commission made an
error of law in taking the view that the applicant worked in the
interest and service of the Verbindungstelle der Bundesländer
and of the office of the Österreichischer Gewerkschaftsbund
and did not carry out work for a Member State. The applicant
submits that that view reveals a misunderstanding of the struc-
ture of the Austrian State.

Finally, she submits that there was a breach of the principle of
equal treatment in that other officials in the same position
received the expatriation allowance.

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

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

Action brought on 18 February 2004 by Société des
Produits Nestlé S.A. against the Office for Harmonisation
in the Internal Market

Action brought on 13 February 2004 by Sonja Hosman-
Chevalier against Commission of the European Commu-
nities

(Case T-74/04)

(2004/C 94/161)

(Language of the case: French)

(Case T-72/04)

(2004/C 94/160)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities by Société des Produits Nestlé S.A.,
having its registered office in Vevey (Switzerland), represented
by Jean-Jo Evrard, lawyer.

(Language of the case: French)

Quick Restaurants S.A. was also party to the proceedings
before the Second Board of Appeal.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 February 2004 by Sonja
Hosman-Chevalier, residing in Brussels, represented by Ramón
García-Gallardo Gil-Fournier and Ellen Wouters, lawyers.

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of the

defendant of 17 December 2003;

The applicant claims that the Court should:

— order the defendant to pay the costs.