Case T-158/04: Action brought on 26 April 2004 by Erich Drazdansky against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-08-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal to the Court (EU), trade-mark law

28.8.2004

EN

Official Journal of the European Union

C 217/19

COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE

Action brought on 26 April 2004 by Erich Drazdansky
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

of 10 June 2004

in Case T-275/01, Mercedes Alvarez Moreno v European
Parliament (1)

(Case T-158/04)

(2004/C 217/36)

(Officials — Auxiliary servant — Conference interpreter —
the Conditions of Employment of Other
Article 74 of

Servants — End of engagement)

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

(2004/C 217/35)

(Language of the case: French)

In Case T-275/01: Mercedes Alvarez Moreno, residing in Berlin
(Germany), represented by G. Vandersanden,
lawyer, against
European Parliament
(Agents: H. von Hertzen and J. de
Wachter), application, first, for annulment of the decision no
longer to engage conference interpreters who have reached the
age of 65 years and, second, for damages, the Court of First
Instance (Fifth Chamber), composed of R. García-Valdecasas,
President, and P. Lindh and J.D. Cooke,
J. Palacio
for the Registrar, gave a
González, Principal Administrator,
judgment on 10 June 2004 in which it:

Judges;

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 26
April 2004 by Erich Drazdansky, resident in Wiener Neustadt
(Austria), represented by A. Leeb, lawyer.

The Concentrate Manufacturing Company of
Ireland, also
trading as Seven-Up International, Hamilton (Bermuda), was
also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

— grant it restitutio in integrum;

1. Annuls the decision of the Parliament of 30 November 2000,
notified to the applicant on 10 February 2001, and the decision
of
the Parliament of 19 July 2001 rejecting the applicant's
complaint;

— alternatively annul the Office's decision and direct it to

reach a fresh decision on the application;

— order the defendant, in any event, to pay the costs of the

proceedings.

2. Dismisses the remainder of the application;

3. Orders the Parliament to pay the costs.

(1) OJ C 3 of 5.1.2002.

Pleas in law and main arguments:

The applicant lodged an application with the defendant Office
for the word mark 'UUP'S' for goods in Class 32 (Application
No 1 968 676). Opposition to that mark was lodged by The
Concentrate Manufacturing Company of Ireland, holder of the
Community trade mark and Spanish word mark ‘UP’ for goods
in Classes 30 and 32.

C 217/20

EN

Official Journal of the European Union

28.8.2004

By decision of 31 July 2003, notified on 1 August 2003 by
fax, the Opposition Division upheld the opposition. By letter of
1 October 2003, received by the Office on 7 October 2003,
the applicant appealed against that decision. By letter of 23
October 2003 the clerks' office of
the Board of Appeal
informed the applicant that the appeal had not been lodged
within the time limit and requested the applicant to submit his
observations on that point. The applicant subsequently lodged
an application for restitutio in integrum.

— Annul the Commission decision of 8 August 2004 which
failed to approve the claim for payment of the balance due
under the European Social Fund (ESF) financing procedure,
did not allow certain expenses submitted by the applicant,
thereby reducing the ESF
training
approved by the Commission decision, and called on the
applicant to repay the sum of EUR 39 899.07, which it had
received as advances from the ESF, and the national public
contribution from the Portuguese State;

contributions

for

By a decision of 3 March 2004 the Second Board of Appeal of
the Office rejected that application and the applicant's appeal.

— Order the Commission to pay the costs.

The applicant submits that the appeal was signed by the appli-
cant's representative on the last day before expiry of the time
limit and placed on the pile of post to be sent out by fax.
the
However, by error, after payment of
employee responsible for the post did not replace the item with
the others to be sent by fax but with those to be sent by
recorded mail.

the appeal

fee,

The applicant claims that, in reaching the contested decision,
the Office failed to apply correctly the rules in Regulation No
40/94 governing restitutio in integrum. Had they been
correctly applied,
the Office would have been obliged to
conclude that the requirements for restitutio in integrum were
fulfilled in the present case, since there was no organisational
fault which would prevent restitution in integrum and the rules
on late payment of fees in the fees regulations would have been
applicable by analogy.

The applicant submits that objectively this is a case of a minor
oversight that could not be prevented by reasonable commer-
cial methods of organisation. It should also be borne in mind
that the other party in the appeal proceedings suffered no
procedural disadvantage.

Action brought on 30 April 2004 on by Eugénio Branco
Lda against the Commission of the European Communities

(Case T-162/04)

(2004/C 217/37)

(Language of the case: Portuguese)

An action was brought before the Court of First Instance of the
European Communities on 30 April 2004 against Commission
of the European Communities by Eugénio Branco Lda, repre-
sented by Bolota Belchior, lawyer, with an address for service
in Luxembourg.

The applicant claims that the Court of First Instance should:

Pleas and principal arguments adduced in support

On 29 June 1986, the applicant submitted to the Departa-
mento para os Assuntos do Fundo Social Europeu (Department
of European Social Fund Affairs – DAFSE) of the Portuguese
State an application for financing to be granted by the ESF for
vocational training for the period from 2 January 1987 to 31
December 1987, which was approved by Commission decision.
The applicant requested payment of
the balance from the
DAFSE, there being a balance in favour of the applicant. The
DAFSE analysed the accounts and documents relating to the
applicant and documents relating to the training actions and,
by decision of 13 March 1989, approved the request
for
payment of the balance. Similarly, the Commission approved
the request for payment of the balance. On 8 August 2004, the
Commission adopted the decision against which these proceed-
ings are brought.

According to the applicant,
the decision infringes Council
Regulation (EEC) No 2950/83 of 17 October 1983, giving
effect to Council Decision 83/516/EEC of 17 October 1983 on
the tasks of the European Social Fund, since the applicant rigor-
ously complied with all the relevant laws, regulations, direc-
tives, criteria, requirements and conditions when its application
to the ESF was approved, thereby acquiring subjective vested
rights. The contested decision thus infringes vested rights.

The decision at issue also breaches the principles of the protec-
tion of legitimate expectations and of legal certainty, since the
approval decision gave the applicant the right and the legally
significant expectation that it would receive the contributions if
it carried out the training in accordance with the agreed condi-
tions. According to the applicant, the Commission could have
taken the action which it has now purported to take at the
start of 1989, and by not doing so breached the principle of
the protection of legitimate expectations and legal certainty.

Finally, the contested decision represents a serious breach of
the principle of proportionality, since the applicant incurred
the expenditure on the basis that the Commission would fulfil
its commitment and its agreement to contribute.