Case T-363/04: Action brought on 31 August 2004 by Koipe Corporación S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), olive oil, trade-mark law, vegetable fats, vegetable oil

20.11.2004

EN

Official Journal of the European Union

C 284/23

Pleas in law and main arguments:

In 2002 the United Kingdom introduced the Aggregates Levy,
an environmental tax on certain aggregates. By a decision of
the same year the Commission concluded that the Aggregates
Levy provisions did not constitute State Aid. Claiming that the
competitive position of its members is affected by the Aggre-
the applicant challenged that decision in the
gates Levy,
context of another case before the Court of First Instance (1).

On 5 January 2004 the United Kingdom notified the Commis-
sion of a new Aggregates Levy relief scheme for Northern
Ireland. By the contested decision the Commission declared the
new scheme compatible with the common market, rejecting
the applicant's complaint against it without opening the formal
investigation procedure.

further

In support of its application the applicant submits first of all
that the scheme in question violates Articles 23 and 90 EC and
could therefore not have been declared compatible with the
the
common market. The applicant
Commission violated its own environmental guidelines (2),
committing in this respect three manifest errors of assessment
namely: Considering a 20 % proportion of the levy payable by
firms eligible for the relief scheme as significant; mistakenly
considering the new relief scheme had been decided when the
Aggregate Levy was adopted and mistakenly finding that the
levy has an appreciable positive impact in terms of environ-
mental protection.

claims

that

the Court of First Instance of the European Communities on 31
August 2004 by Koipe Corporación S.L., established in San
Sebastián (Spain), represented by Marcos Fernández de Béthen-
court, lawyer.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of OHIM

of 11 May 2004 in Case R-1109/2000-4;

— declare the mark applied for to be invalid or, as the case
may be, order refusal of the application for a Community
trade mark, No 236.588, ‘LA ESPAÑOLA’, in respect of all
the goods claimed; and

— order OHIM, and any person intervening whose claims are

not upheld, to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

Aceites del Sur S.A.

Figurative mark ‘LA ESPAÑOLA’ –
Application No
for
goods in classes 29 (edible oils
and fats) and 30 (mayonnaise
made with olive oil)

236.588

is

applicant, which

The
the
successor to KOIPE S.A., the firm
which appeared before the Board
of Appeal, as regards ownership of
the marks on the basis of which
the opposition proceedings were
brought.

The applicant also submits that the Commission failed to state
reasons in the contested decision, as required by Article 253
EC, violated its obligation to initiate a formal
investigation
procedure, and violated its procedural obligations in the preli-
minary investigation.

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

(1) Case T-210/02, notified in OJ C 219, 14.9.2002, p. 23.
(2) Community guidelines on State aid for environmental protection OJ

C 37, 3.2.2001 p. 3-15.

Mark or sign cited in
opposition.

The Community (No 338.681),
(Nos 244.428 and
international
528.369) and national
(Spanish
1.238.745,
Nos
registrations
1.698.613, 28.270 and 252.738
and United Kingdom registrations
Nos 730.990 and 2.043.818 inter
‘CARBO-
alia)
NELL’, for goods in class 29 (olive
oil and pure olive oil).

figurative marks

Decision of the Opposi-
tion Division:

Opposition rejected.

Decision of
of Appeal:

Pleas in law:

the Board

Appeal dismissed.

Incorrect interpretation of Article
8(1)(b), (2)(c) and (5) of Regulation
(EC) No 40/94.

Action brought on 31 August 2004 by Koipe Corporación
S.L. against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-363/04)

(2004/C 284/46)

(Language in which the application was submitted: Spanish)

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