Case T-180/04: Action brought on 25 May 2004 by Przedsiebiorstwo Polmos Bialystock 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), beer, trade-mark law

28.8.2004

EN

Official Journal of the European Union

C 217/21

Action brought on 25 May 2004 by Przedsiebiorstwo
Polmos Bialystock against the Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM)

Action brought on 25 May 2004 by Tokai Europe GmbH
against the Commission of the European Communities

(Case T-180/04)

(2004/C 217/38)

(Case T-183/04)

(2004/C 217/39)

(Language of the case: English)

(Language of the case: German)

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 25
May 2004 by Przedsiebiorstwo Polmos Bialystock, Bialystock,
Poland, represented by Ms C. Bercial Arias, lawyer.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 25 May 2004 by Tokai Europe
represented by G.
GmbH, Mönchengladbach (Germany),
Kroemer, lawyer.

V & S Vin & Sprit AB was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

The applicant claims that the Court should:

— annul the Decision of the First Board of Appeal of March
16, 2004 in case R 430/2003-1 confirming the Opposi-
tion's Division Decision No. 1200/2003 upholding opposi-
tion No. B 432 635

— order the Office to pay costs, including those incurred in
the opposition proceedings and before the Boards of
Appeal

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

the applicant

Community trade mark
sought:

Figurative mark ‘ABSOLWENT B
GRADUATE VODKA WÓDKA’
for goods in class 33 (beer etc.)

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

Mark or sign cited in
opposition:

V & S Vin & Sprit AB

Word national mark ‘ABSOLUT’

Decision of the Opposi-
tion Division:

Registration refused

Decision of
of Appeal:

Pleas in law:

the Board

Appeal rejected

Inapplicability of Articles 8(1)(b)
and 8(2)(c) of Regulation 40/94.
In this
applicant
submits that the signs in question
are dissimilar.

context,

the

— annul Commission Regulation (EC) No 384/2004 of 1
March 2004 concerning the classification of certain goods
in the Combined Nomenclature; (1)

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant manufactures cigarette lighters and imports
cigarette lighters and parts for cigarette lighters.
It contests
Commission Regulation (EC) No 384/2004.

The applicant submits that, by classifying,
in the contested
regulation, the base metal wheels imported for the manufacture
of cigarette lighters in Mexico and Hong Kong as parts (of
cigarette lighters) under subheading 961390 of the customs
nomenclature,
that
subheading beyond its wording. As a result, primary products
also used in other goods which cannot be classed under
heading 9613 were classified as parts for cigarette lighters. The
Commission thereby exceeded the limits of its discretion.

the Commission extended the scope of

in taking account of

The applicant also claims that,
the
intended use of the metal wheels in the manufacture of cigar-
ette lighters, the Commission acted in breach of the principle
that goods are to be classified according to their objective
nature. In the reasons stated in the regulation, express reference
is made to the wheels' intended use.

Moreover,
the applicant submits that, when classifying the
metal wheels, the Commission failed to comply with the expla-
natory notes on the Harmonised System (HS) issued by the
Customs Cooperation Council
in that, as is stated in the
reasons, it based the classification of the wheels in the customs
tariff on the criterion of intended use rather than applying the
criterion of appearance.

(1) OJ 2004 L 64, p. 21.