Case T-191/04: Action brought on 27 May 2004 by MIP Metro Group Intellectual Property GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-08-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), marketing, trade-mark law

C 201/20

EN

Official Journal of the European Union

7.8.2004

Action brought on 24 May 2004 by Société Freixenet S.A.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

Action brought on 27 May 2004 by MIP Metro Group
Intellectual Property GmbH & Co. KG against the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM)

(Case T-190/04)

(2004/C 201/42)

(Language of the case: French)

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 24
May 2004 by Société Freixenet S.A., established in Sant Sadurní
d'Anoia (Spain), represented by F. de Visscher, E. Cornu, E. De
Gryse and D. Moreau, lawyers.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 11
February 2004 (Case R 97/2001-4) and find that the appli-
cation for Community trade mark No 32532 is to be
published in accordance with Article 40 of Regulation No
40/94;

— in the alternative, annul the decision of the Fourth Board of
Appeal of the Office for Harmonisation in the Internal
Market of 11 February 2004 (Case R 97/2001-4);

— order the Office for Harmonisation in the Internal Market

to pay the costs.

(Case T-191/04)

(2004/C 201/43)

(Language of the case: 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 27
May 2004 by MIP Metro Group Intellectual Property GmbH &
Co. KG, Düsseldorf (Germany), represented by R. Kaase, lawyer.

Tesco Stores Limited was also a party to the proceedings before
the Board of Appeal.

Pleas in law and main arguments:

The applicant claims that the Court should:

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

Three-dimensional mark in the
form of a white polished bottle
(application No 32532)

Goods or services:

Goods
wines)

in Class 33 (sparkling

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

OHIM of 23 March 2004 in Case R 486/2003-1;

— order the OHIM to pay the costs.

Decision of
iner:

Decision of
of Appeal:

Pleas in law:

the Exam-

Rejection of the application

Pleas in law and main arguments:

the Board

Dismissal of the appeal

Infringement of Article 73 of
Regulation No 40/94, in so far as
the decision of
the Board of
is based on a certain
Appeal
number of
in respect of
which the applicant was able to
submit observations, and Article
7(1)(b) and (3) of that regulation,
inasmuch as the trade mark in
question is intrinsically distinctive

facts

Applicant
munity trade mark:

for

Com-

MIP METRO Group Intellectual
Property GmbH & Co. KG

Community trade mark
sought:

The figurative mark ‘METRO’
in
relation to goods which are not
issue in these proceedings
the
(application No 779116)

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

Tesco Stores Limited

7.8.2004

EN

Official Journal of the European Union

C 201/21

Mark or sign cited in
opposition:

The national word mark ‘METRO’

European Communities on 27 May 2004 by The Bavarian
Lager Company, Clitheroe, United Kingdom, represented by Mr
J. Pearson and Mr C. Bright Solicitors with an address for
service in Luxembourg.

Decision of the Opposi-
tion Division:

Rejection of the opposition

Decision of
of Appeal:

the Board

Annulment of the decision of the
Opposition Division

The applicant claims that the Court should:

Pleas in law:

that

further

provide

submits

the
The applicant
time an earlier right as basis for an
opposition has to be in force and
to be proved to have this status,
should be the time of the decision
by the Opposition Division, or,
alternatively, when the time-limit
to
evidence
expires. In support of its applica-
tion, the applicant invokes a viola-
tion of
the
proceedings, enshrined in Article
74 of Council Regulation No
40/94 (1) and Rules 16 and 20 of
No
Commission
2868/95 (2). According
to the
applicant, Article 8 (1)
(b) of
Council Regulation 40/94 does
not indicate that the validity of the
earlier mark is only required at the
time of filling an opposition.

the parameters of

Regulation

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

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ L 303, p. 1).

Action brought on 27 May 2004 by The Bavarian Lager
the European
Company against

the Commission of

Communities

(Case T-194/04)

(2004/C 201/44)

(Language of the case: English)

An action against the Commission of the European commu-
nities was brought before the Court of First Instance of the

— Declare that

the Commission's acceptance of

the UK
Government's amendment to Article 7(2)(a) of the Supply
of Beer (Tied Estate) Order 1989 (S.I. 1989 No 2390) (the
‘guest beer provision’) was in breach of Article 28 (then
Article 30) of the EC Treaty;

— Declare that the Commission should not have accepted the
aforementioned amendment and in doing so, the Commis-
sion is itself was in breach of Article 28 (then Article 30) of
the EC Treaty;

— Annul the Decision of the Commission dated 18 March
2004 to refuse to disclose to the applicant certain docu-
ments;

— Order the Commission to produce the full set of names of
persons attending the meeting held on 11 October 1996 at
which were present officers of the Directorate-General for
the Internal Market, officials of the UK Government Depart-
ment of Trade and Industry and representatives of
the
Conféderation des Brasseurs du Marché Commun; and

— Order the Commission to pay costs

Pleas in law and main arguments:

The applicant company was formed on 28 May 1992 to
import German beer for sale in public houses in the United
Kingdom. In 1993 the applicant complained to the Commis-
sion about an alleged violation of Article 28 EC (then Article
30 of the EC Treaty) in connexion with the ‘guest beer provi-
sion’
in UK legislation. Under this provision breweries are
required to allow public houses bound to them by exclusive
purchasing agreements to offer a ‘guest’ beer from a different
brewery. The guest beer had to be a beer undergoing fermenta-
tion in the cask from which it was sold, a type of beer which is
almost exclusively produced in the United Kingdom. The beer
sold by the applicant as well as most beers produced outside
the United Kingdom could not be covered by this provision
and the applicant considered this a measure of equivalent effect
to a quantitative restriction. In a letter of 21 April 1997 the
Commission informed the applicant that, in view of a proposed
amendment of the guest beer provision, the procedure against
the United Kingdom had been suspended and would be
brought
to a close as soon as the amendment had been
adopted.