Case T-202/04: Action brought on 27 May 2004 by Madaus Aktiengesellschaft 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), food supplement, pharmaceutical product, trade-mark law

C 201/22

EN

Official Journal of the European Union

7.8.2004

On 5 December 2003 the applicant requested the Commission,
on the basis of Regulation 1049/2001 (1), to grant it full access
to the minutes of a meeting on this matter, which took place
on 11 October 1996 between representatives of the Commis-
sion, the United Kingdom government and breweries. In par-
ticular, the applicant asked the Commission to reveal the iden-
tity of certain persons whose names had been blanked out in
the minutes previously disclosed to the applicant. The Commis-
sion rejected the applicant's request and confirmed its refusal in
a letter of the Secretary General to the applicant, dated 18
March 2004. In support of its refusal it invoked the need to
protect personal data of the persons present at the meeting, as
well as a potential risk to the Commission's ability to carry out
investigations in such cases if the identity of persons giving
information to the Commission were to be disclosed.

the Court of First Instance of the European Communities on 27
May 2004 by Madaus Aktiengesellschaft, Köln,
(Germany),
represented by I. Valdelomar Serrano, lawyer.

The Optima Health Limited was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— recognise that the OHIM made a judicial error when issuing

the contested decision;

By its application, the applicant requests first of all a declara-
tion against the Commission's decision to suspend the proce-
dure against the United Kingdom. In this respect, the applicant
invokes a violation of Articles 28 and 12 EC.

— annul the contested decision.

Pleas in law and main arguments:

Concerning the Commission's refusal to grant it access to the
documents requested, the applicant submits that Article 2 of
Regulation 1049/2001 (1) obliges the Commission to make full
disclosure of the persons who attended the meeting in question,
and that none of the exceptions contained in Article 4 apply.
The applicant further contends that the exception in Article 4
paragraph 3 may be disregarded because there is overwhelming
public interest in disclosure.

(1) 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, OJ L 145,
31.5.2001 P. 43 - 48

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

Optima Healthcare Ltd, changed
to The Optimal Health Ltd.

The word mark ‘ECHINAID’
for
goods in class 5 (vitamins, food
supplements, herbal preparations,
medical
pharmaceutical
preparations) (CTM application No
1666239)

and

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

Madaus AG

Mark or sign cited in
opposition:

The international trade mark regis-
tration of the word mark ‘ECHI-
NACIN’
in class 5
(chemical pharmaceuticals)

for goods

Action brought on 27 May 2004 by Madaus Aktienge-
sellschaft against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

Decision of the Opposi-
tion Division:

Rejection of the opposition

(Case T-202/04)

(2004/C 201/45)

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

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before

Decision of
of Appeal:

the Board

Dismissal of
by Madaus

the appeal brought

Pleas in law:

that

submits

the
The applicant
Board of Appeal erred in applying
the concept of relevant
territory
and relevant public. The applicant
also claims that the prefix Echina
is not descriptive and that there is
a likelihood of confusion between
the marks.