Case T-84/04: Actionbrought on 20 February 2004 by Axiom Medical,Inc. against the Office for Harmonisation in the Internal Market
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), brand name, trade-mark law

30.4.2004

EN

Official Journal of the European Union

C 106/77

Pleas in law and main arguments:

— breach of the duty to state reasons;

The subject-matter of this action is the complaint lodged by the
applicants with the defendant concerning inter alia the aid
granted by the French State to ORANGE FRANCE and SFR by
way of a retroactive reduction in the royalty payments of
EUR 4 955 000 000 which each of those operators had under-
taken to pay in exchange for the Universal Mobile Telecommu-
nications System (‘UMTS’) licence awarded to them on 15 June
2001. The other complaints raised by the applicants related to:

— a manifest error of assessment under Article 87 EC et seq.,
in that the retroactive reduction in the amount of UMTS
royalties which ORANGE FRANCE and SFR had originally
undertaken to pay met all the requirements of a measure
constituting State aid;

— a breach of the procedural rules laid down in Article 88(3)
EC, in that the Commission wrongly decided, having regard
to the circumstances of the case, not to initiate the formal
investigation procedure laid down under that provision.

— the making available on an exclusive basis of FRANCE
TELECOM outlets for the benefit of ORANGE FRANCE;

— the exceptional arrangements for commercial tax applying

to FRANCE TELECOM;

— the reduction in liability for pension charges and the
contributions

exemption from unemployment benefit
granted to FRANCE TELECOM;

— the French rules relating to universal service;

— the treatment of dividends paid by FRANCE TELECOM;

— the measures of

financial support granted to FRANCE

TELECOM.

Action brought on 20 February 2004 by Axiom Medical,
Inc. against the Office for Harmonisation in the Internal
Market

(Case T-84/04)

(2004/C 106/151)

(Language of the case: German)

As regards the action for a declaration of failure to act, the
applicants claim that the Commission has still not defined its
position in relation to the UMTS complaint, which was none
the less the subject of the letter of formal notice, and that the
letter of 11 December 2003 sent to them by the Commission
in response to their letter of formal notice cannot amount to a
definition of its position in terms of Article 232 EC. That letter
simply noted that the consideration of measures potentially
amounting to State aid for the benefit of FRANCE TELECOM
was one of the Commission's priorities, without stating an
opinion on the merits of the complaint in question. Accord-
ingly, having regard to the omissions in its reasoning, that
letter could not be treated as having remedied the failure to act.

As regards the application brought in the alternative for a
declaration of
invalidity relating to the decision of 11
December 2003 which dismissed the complaint, the applicants
rely on three pleas in law based on:

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 20 February 2004 by Axiom
Medical,
Inc., Rancho Dominguez (USA), represented by R.
Köbbing, lawyer.

The applicant claims that the Court should:

— annul Decision R 193/2002-1 of the First Board of Appeal

of 17 December 2003;

— in the alternative, annul Decision R 193/2002-1 in respect

of the goods in Class 10;

— order the defendant to pay the costs.

C 106/78

EN

Official Journal of the European Union

30.4.2004

Pleas in law and main arguments:

— Order the defendant to pay all costs relating to the proceed-

ings.

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

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

Word mark ‘ATRAUM’ for goods
in Class 5 (wound dressings) and
Class 10 (medical devices etc.) –
Application No 11405588

Paul Hartmann Akteingesellschaft

Mark or sign cited in
opposition.

National and international mark
‘Atrauman’ for goods in Class 5

Decision of
of Appeal:

the Board

Dismissal of the applicant's appeal

Decision of the Opposi-
tion Division:

Rejection of the opposition

Pleas in law:

Infringement of Article 8(1)(b) of
Regulation No 40/94

Pleas in law and main arguments:

In support of his application, the applicant first pleads that the
report concerning him is stored in electronic form in the new
computer system of the Commission's personnel division and
file which infringes
thus constitutes a parallel personal
Article 26 of
the new
computer system also contravenes the requirement in Article
25 of the Staff Regulations that documents be in written form.

the Staff Regulations. The use of

The applicant submits further that the reporting procedure
infringes Article 43 of the Staff Regulations, Article 8 of the
Commission Decision of 26 April 2002 on general
imple-
menting provisions for Article 43, the principle of equality, the
prohibition of discrimination, the duty to state reasons and the
prohibition of arbitrary action. The requirement that legitimate
expectations be protected, the ‘patere legem quam ipse fecisti’ rule,
the Commission's duty to protect the interests of its officials,
the audi alteram partem rule and the principles of fair adminis-
trative procedure have also been infringed by the contested
reporting procedure, including the appeal proceedings brought
by the applicant.

Action brought on 1 March 2004 by Guido Strack against
the Commission of the European Communities

(Case T-85/04)

(2004/C 106/152)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 1 March 2004 by Guido Strack,
Wasserliesch (Germany), represented by J. Mosar, Rechtsanwalt.

The applicant claims that the Court should:

— set aside the reporting procedure for the years 2001 to

2002 so far as the applicant is concerned;

— set aside the report made in his regard (REC/CDR) —
including the view expressed by his previous hierarchical
superior and the decision of the appointing authority (R/
432/03) of 24 November 2003 — for the period from
1 July 2001 to 31 December 2002;

Action brought on 1 March 2004 by Milagros Irene
Arranz Benítez against the European Parliament

(Case T-87/04)

(2004/C 106/153)

(Language of the case: French)

An action against the European Parliament was brought before
the Court of First Instance of the European Communities on 1
March 2004 by Milagros Irene Arranz Benítez, residing in Brus-
sels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël
Louis and Etienne Marchal, avocats, with an address for service
in Luxembourg.

The applicant claims that the Court of First Instance should:

— annul the decision of the Head of the European Parliament's

‘Individual Rights’ Division of 15 April 2003;