Case T-263/04: Action brought on 25 June 2004 by BIC S.A. against the Office for Harmonisation in the Internal Market
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), manufactured goods, tobacco industry, trade-mark law

C 251/22

EN

Official Journal of the European Union

9.10.2004

With regard to Articles 6(3), 7(1) and 8(2)(a) of Regulation
No 60/2004, the applicant alleges infringement of the princi-
ples of solidarity and good faith in relations between the
Member States and the Community institutions (Article 10 EC)
by reason of the imposition on Poland, through the contested
measures, of obligations with which it
is in practice not
possible to comply, and by reason of the refusal to cooperate
with a view to overcoming difficulties which have arisen.

With regard to all of the contested provisions of Regulation
No 60/2004, the applicant argues that the Commission abused
its powers by adopting measures the real objective of which is
not to facilitate Poland in adopting the rules of the Common
Agricultural Policy but rather to protect the market of the
Community of 15 States against competition from Polish agri-
cultural producers.

(1) OJ 2003 L 236, p. 33.
(2) OJ 2001 L 178, p. 1, as subsequently amended.

Action brought on 25 June 2004 by BIC S.A. against the
Office for Harmonisation in the Internal Market

(Case T-262/04)

(2004/C 251/40)

(Language of the case: French)

Pleas in law:

The applicant has shown that the
shape of the lighter in respect of
which the application for registra-
tion as a Community trade mark
was made is widely recognised by
consumers as belonging to it.

The applicant has established that
the shape of the BIC lighter had
acquired a distinctive
character
within the meaning of Article 7 of
Regulation (EC) No 40/94.

Action brought on 25 June 2004 by BIC S.A. against the
Office for Harmonisation in the Internal Market

(Case T-263/04)

(2004/C 251/41)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 25 June 2004 by BIC S.A., estab-
lished in Clichy (France), represented by Michel-Paul Escande,
lawyer.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 25 June 2004 by BIC S.A., estab-
lished in Clichy (France), represented by Michel-Paul Escande,
lawyer.

The applicant claims that the Court should:

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
(Trade
Marks and Designs) of 6 April 2004 (Case R 468/2003-4),
in so far as it decided that Community trade mark applica-
tion No 1 738 392 should be refused on the grounds laid
down in Article 7 of Regulation No 40/94, since BIC has
shown that the conditions for the application of that article
were not satisfied in the present case;

— order the defendant to pay the costs.

Pleas in law and main arguments:

— annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 6 April 2004 (Case R 468/2003-
4), (1) in so far as it decided that Community trade mark
application No 1 738 566 should be refused on the
grounds laid down in Article 7 of Regulation No 40/94,
since BIC has shown that the conditions for the application
of that article were not satisfied in the present case;

— order the defendant to pay the costs.

Community trade mark
applied for:

Three-dimensional
the shape of a lighter.

trade mark in

Pleas in law and main arguments:

Goods or services:

Goods
articles,
No 1 738 392.

in Class 34 (smoker's
lighters) — application

Decision
before
Appeal:

contested
the Board of

Refusal to register by the exam-
iner.

Decision of
of Appeal:

the Board

Appeal dismissed.

Community trade mark
applied for:

Three-dimensional trade mark in
the shape of a lighter.

Goods or services:

Goods
articles,
No 1 738 566.

in Class 34 (smoker's
lighters) — application

9.10.2004

EN

Official Journal of the European Union

C 251/23

Decision
before
Appeal:

contested
the Board of

Refusal to register by the exam-
iner.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

The applicant has shown that the
shape of the lighter in respect of
which the application for registra-
tion as a Community trade mark
was made is widely recognised by
consumers as belonging to it.

The applicant has established that
the shape of the BIC lighter had
acquired a distinctive
character
within the meaning of Article 7 of
Regulation (EC) No 40/94.

(1) Probably R 469/2003-4.

Action brought on 7 July 2004 by Brandt Industries
against the Commission of the European Communities

(Case T-273/04)

(2004/C 251/42)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 7 July 2004 by Brandt Industries,
established in Rueil-Malmaison (France), represented by Niels
Dejean and Christophe Delrieu, lawyers.

The applicant claims that the Court should:

— annul the Commission decision of 16 December 2003 on
the aid scheme implemented by France for the takeover of
firms in difficulty on the grounds that it does not state
adequate reasons as required under Article 253 EC and that
is contrary to Article 14 of Regulation (EC) No
it
659/1999 (1) of 22 March 1999;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the decision of 16 December 2003 the Commission
concluded that the scheme provided for in Article 44 septies of
the Code Général des Impôts (French General Taxation Code)
constituted a State aid incompatible with the common market,
without prejudice to de minimis aid and aid compatible with
the guidelines on aid for regional purposes or with the exemp-

tion rule regarding aid to small and medium-sized undertak-
ings. It ordered France to recover the aid granted.

The applicant contests the Commission decision.
It submits
that the decision should be annulled on the ground that the
decision does not show adequate reasons in light of the require-
ments of Article 253 EC. In the decision, the Commission itself
recognised that it had no specific information on the firms
which automatically benefited from the scheme under Article
44 septies of the Code Général des Impôts.

Furthermore, the applicant submits that the contested decision
is in breach of Article 14 of Regulation (EC) No 659/1999. The
Commission did not take account of the fact that the tax aid to
companies formed to take over firms in difficulty had the effect
of bringing those companies to propose a higher price for the
assets than that which they would have offered if that aid had
not existed. Consequently, all or part of the aid was transferred,
by way of an increase in the repurchase price of those assets,
to the creditors of the firm in receivership, so that the takeover
companies could not be regarded as the actual beneficiaries of
the entirety of the aid. Reimbursement of the aid received by
the takeover companies is not a measure necessary for the
return of the competition situation to what it was before the
grant of the aid, but, on the contrary, would place the takeover
companies in a less favourable position than that in which they
would have been without the aid, so that it contravenes the
principles of fair competition and of proportionality.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article [88] of the EC
Treaty (OJ L 83, p. 1).

Action brought on 9 July 2004 by Jabones Pardo, S.A.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-278/04)

(2004/C 251/43)

(Language of the case: Spanish)

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 9 July
2004 by Jabones Pardo, S.A., established in Madrid, represented
by José Enrique Astiz Suárez, of the Madrid Bar.

The applicant claims that the Court should:

— vary the findings of the contested decision as regards the
similarity of the signs and the goods, ordering that the
opposition be admitted and the application refused in
respect of goods in classes 3 and 5; and