Case T-268/04: Action brought on 28 June 2004 by Spa Monopole, Compagnie fermière de Spa 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), food additive, mineral water, trade-mark law

28.8.2004

EN

Official Journal of the European Union

C 217/37

In support of its claims, Spain relies on the following legal
grounds:

Action brought on 28 June 2004 by Spa Monopole,
Compagnie fermière de Spa against the Office for Harmo-
nisation in the Internal Market (Trade Marks and Designs)
(OHIM)

— Financial compensation for withdrawals of fruit and vegeta-

bles

Under this heading, Spain states that, although the Spanish
authorities, as a result of a misinterpretation, did not
inspect 100 % percent of the products withdrawn, they
adopted the measures needed to adjust
the procedure
immediately after being advised of the error by the Euro-
pean Court of Auditors. In the applicant's view, it is not
logical to penalise Spain for a misinterpretation of the legis-
lation, which was rectified as soon as notice was given, in
view of the fact, first, that the Spanish authorities were dili-
gent in rectifying the problem detected by the Court of
Auditors and, second, on-the-spot controls were carried out
on a large percentage of products, in addition to the regu-
lation checks.

(Case T-268/04)

(2004/C 217/66)

(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 28
June 2004 by Spa Monopole, Compagnie fermière de Spa, Spa
(Belgium), represented by Emmanuel Cornu, Eric De Gryse and
Donatienne Moreau, lawyers.

Cottee Dairy Products Pty Limited, was also a party to the
proceedings before the First Board of Appeal.

— Arable crops and cattle premiums

The applicant claims that the Court should:

Under this heading, Spain states that, pursuant to Article
7(4) of Regulation (EC) No 1258/99, in conjunction with
Article 5(2) of Regulation (EEC) 729/70, all Basque Country
expenditure relating to the 1998/1999 marketing year and
the 1999/2000 marketing year should have been excluded
from the financial correction,
the payments in relation
thereto having been made prior to 31 January 1999 and 31
January 2000 respectively. The same applies to La Rioja.

Secondly,
cattle premiums,
Article 8 of Regulation (EEC) No 1663/95 was fulfilled.

it is not readily apparent that, with regard to
the requirement of notification under

the payments in
According to the Kingdom of Spain,
respect of cattle premiums for the years 1998,1999 and
2000 had already been audited and dealt with under the
2000/2011 investigation. As regards the 1998,1999 and
2000 applications for the Basque Country, and the 1998
and 2000 applications for la Rioja, the Commission applied
a financial correction without taking account of the fact
that, when carrying out the abovementioned investigation,
its staff had concluded that no financial correction was
the abovementioned applications.
necessary as
Consequently, the aim now pursued by the 2000/2011
investigation is to reopen a case which had already been
closed, with a different team from the EAGGF dealing with
the same applications for 1998 to 2000, which have
already been analysed, and even dealing with the same
aspect of the application of penalties, and reaching different
conclusions regarding the scope of
the exclusion from
financing.

regards

— annul the contested decision;

— order the OHIM to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Cottee Dairy Products Pty Limited

Community trade mark
sought:

Word mark 'SPA'
Class 1 (Application No 911388)

for goods in

Mark or sign cited in
opposition.

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

The figurative and word marks
registered in Benelux for
'SPA'
goods
the
company and trade names of the
opponent.

in Class 32 and

S.A. Spa Monopole, Compagnie
fermière de Spa

Decision of the Opposi-
tion Division:

Rejection of
registration

the application for

Decision of
of Appeal:

the Board

Annulment of the decision of the
Opposition Division

Pleas in law:

Breach of Article 8(5) of Regu-
lation (EC) No 40/941.

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

Community trade mark (OJ L 11, 14.1.1994, p. 1)