Case T-172/04: Action brought on 17 May 2004 by Telefónica S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-07-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), service, telecommunications, telematics

10.7.2004

EN

Official Journal of the European Union

C 179/15

Action brought on 18 May 2004 by FederDOC and Others
against the Commission of the European Communities

could ultimately place in circulation within the Community
products without the oenological and organoloptic qualities
which the wines in question must possess.

(Case T-170/04)

(2004/C 179/29)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 18 May 2004 by FederDOC –
National Confederation of voluntary associations for the protec-
tion of designations of origin and typical geographical indica-
tions of Italian and other wines, represented by Luciano Spag-
nuolo Vigorita, Paolo Tanoni and Roberto Gandin, lawyers.

The applicants claim that the Court should:

— Annul Commission Regulation (EC) No 316/2004 of 20
February 2004 (OJ 2004 L 55, p. 16) amending Regulation
(EC) No 753/2002 laying down certain rules for applying
Council Regulation (EC) No 1493/1999 as regards the
description, designation, presentation and protection of
certain wine sector products.

Under national
legislation all the applicants are legitimately
entitled to secure the use of the abovementioned traditional
indications or, at any rate, to use them.

In support of their claims the applicants consider, in particular,
that the Commission has exceeded the competences conferred
on it and adopted the contested regulation without an adequate
statement of reasons and without first obtaining the opinion of
the Management Committee for wine established under Regu-
lation No 1493/1999 or seeking the views of the applicants
themselves.

The applicants further consider that certain provisions of the
contested regulation contravene important principles under-
mining the EC Treaty such as those in the sector of agriculture,
of competition, consumer protection, equal treatment, propor-
tionality, acquired rights and legal certainty. Specific provisions
of Regulation No 1493/1999 (Articles 47, 48 and 49) are then
also infringed by the contested regulation which also runs
counter to Articles 23(3) and 24(4) of the Marrakesh Trips
Agreement of 15 April 1994 (Trade Related Intellectual Prop-
erty Rights) to which the Community is a party.

The applicants also claim that the contested regulation contra-
venes the obligation to provide a statement of the reasons on
which it is based.

— In the alternative, annul in whole or in part, Article 1(3),
(8a), (9a), (9b), (10) and (18) of Regulation No 316/2004
and, consequently, Annex II thereto.

(1) OJ 2004 L 55, p. 16.

— Order the Commission to pay the costs.

Pleas and main arguments

The present action is directed against Commission Regulation
(EC) No 316/2004 of 20 February 2004 amending Regulation
(EC) No 753/2002 laying down certain rules for applying
Council Regulation (EC) No 1493/1999 as regards the descrip-
tion, designation, presentation and protection of certain wine
sector products (1).

liberalisation,

in favour of

Essentially, the applicants point to the real danger that imple-
mentation of the contested regulation could result in a degree
of
third-country producers, as
regards the use of the following traditional indications which
distinguish specific Italian wines known throughout the world:
Amarone, Cannellino, Brunello, Est!Est!Est!, Falerno, Governo
all'uso toscano, Gutturnio, Lacryma Christi, Lambiccato, Morel-
lino, Recioto, Sciacchetrà, Sciac-trà, Sforzato (or Sfurzat),
Torcolato, Vergine, Vino Nobile, Vin santo (or Vino Santo or
Vinsanto). That would prejudice the position which has, by
dint of their efforts, been achieved by the producers of the
Member States in the wine market (producers bound by obser-
vance of strict parameters as to quantity and quality) and,
above all, would result in unacceptable damage to consumer
confidence. Third-country producers would not
in fact be
required to observe the relevant production parameters and

Action brought on 17 May 2004 by Telefónica S.A. against
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case T-172/04)

(2004/C 179/30)

(Language of the case: Spanish)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 17
May 2004 by Telefónica S.A. established in Madrid, represented
by Mr Andrea Sirimarco, lawyer.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of

12 March 2004 in Case R 676/2002-1;

C 179/16

EN

Official Journal of the European Union

10.7.2004

— register the Community trade mark No 1.694.157 ‘emergia’
(figurative mark)
to designate ‘telecommunications by
networks of undersea cables for the electronic transmission
of voice, data and video communications’ in class 38 of the
International Classification; and

— order the Office for Harmonisation in the Internal Market
and any party entering an appearance as intervener to pay
the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

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

Mark or sign cited in
opposition.

The applicant.

Figurative mark ‘emergia’– applica-
tion No 1.694.157 for products
and services in Classes 9, 38 and
42.

D. Branch.

word

products

for
including,
transmission

mark
Community
and
‘EMERGEA’
in class 38,
services
service
by
‘data
national
international
networks and communications by
computer terminals’.

and

residing at Brussels, represented by N. Lhoëst, lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the decision of the Director General of DG ADMIN
of 21 May 2003 which confirms, without amendment, the
applicant's career development review for the period from
1 July 2001 to 31 December 2002;

— Annul, so far as necessary, the Commission's Decision of
23 December 2003, rejecting the applicant's complaint;

— Order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments:

In support of his action, the applicant pleads the illegality of
the new appraisal system based on non-objective criteria which
do not enable the subject to ascertain, in sufficient time, the
contents of his appraisal report in order to be able, if appro-
priate, to submit observations to the appraiser.

The applicant also pleads infringement of the duty to state
reasons, in that the significant decline in the appraisal of his
merits was not properly explained, and a manifest error of
assessment.

Decision of the Opposi-
tion Division:

Opposition upheld in part in so
far as the opposition concerned
‘tele-communications, communica-
tions by computer networks’
in
class 38.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

Article 8(1)(b) of Regulation No
40/94 (likelihood of confusion)
wrongly applied.

Action brought on 14 May 2004 by Jürgen Carius against
Commission of the European Communities

(Case T-173/04)

(2004/C 179/31)

(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 14 May 2004 by Jürgen Carius,

Action brought on 6 May 2004 by Petrotub S.A., against
the Council of the European Union

(Case T-174/04)

(2004/C 179/32)

(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 6 May 2004 by Petrotub S.A., Roman,
Romania, represented by Mr A.L. Merckx,
lawyer, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Annul Article 1 of Council Regulation (EC) No 235/2004
of 10 February 2004 amending Regulation (EC) No
2320/97 imposing definitive
anti-dumping duties on
imports of certain seamless pipes and tubes of iron or non-
alloy steel originating in, inter alia, Romania in so far as it
concerns
into the European Community of
products manufactured by Petrotub S.A. and Republica
S.A (1).

imports

— order the defendant to pay the costs