Case C-417/04 P: Appeal brought on 29 September 2004 by Regione Siciliana against the order made on 8 July 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-341/02 Regione Siciliana v Commission of the European Communities
Date: 2004-12-04
Institutions: Court of Justice
Subjects: EU financing, European Regional Development Fund, General Court (EU), action for annulment (EU), expenditure, infringement of EU law, interpretation of the law, project management

C 300/30

EN

Official Journal of the European Union

4.12.2004

— the opponent submitted for 1997 only two invoices, repre-

senting a total value of no more than 1,306.00 EUR;

— the goods at issue were low-cost goods and thus, goods of

mass production and mass consumption;

Siciliana, represented by the Avvocatura dello Stato, against the
order made on 8 July 2004 by the Court of First Instance of
the European Communities (Third Chamber) in Case T-341/02
Regione Siciliana v Commission of the European Communities.

— these goods were relatively easy to sell;

The appellant claims that the Court should:

— the goods at issue were sold at best to one single customer;

and that therefore the opposing Trademark ES 372 221 ‘VITA-
FRUT’ had not been put to genuine use within the meaning of
Article 43 Section 2, 3 CTMR, because its use was sporadic,
occasional, minimal and not present in a substantial part of the
territory where it was protected.

— set aside the order of 8 July 2004 of the Court of First

Instance of the European Communities.

Pleas in law and main arguments:

Infringement of Article 8 Section 1 Subsection b) CTMR

The appellant submits that the order under appeal is defective
on the following grounds:

Further, the trademarks to be compared are not confusingly
similar with regard to the goods ‘herbal and vitamin beverages’
for which the applied for Trademark No. 156 422 ‘VITAFRUIT’
seeks protection. In particular, the goods ‘herbal and vitamin
beverages’ on the one hand and ‘fruit juice concentrate’ on the
other hand are only remotely similar because they possess only
few points of contact.

This is based on the fact that the goods to be compared differ
with regard to their product qualities, their raw materials, and
the circumstances of their production, namely the machinery,
the know-how and the production facilities which are necessary
for the manufacturing of the goods in question. Further, the
goods to be compared differ in respect of the way in which
they are used, their functional qualities and the way in which
they are distributed. Therefore, the possible common character-
istics of the goods in question are outweighed by their differ-
ences.

(1) OJ C 233, 28.09.2002, p. 26.

Appeal brought on 29 September 2004 by Regione
Siciliana against the order made on 8 July 2004 by the
Court of First Instance of the European Communities
in Case T-341/02 Regione Siciliana v
(Third Chamber)

Commission of the European Communities

any

there

absolute bar

— paragraphs 47, 48 and 49 of the order state clearly that its
legal basis is provided by Article 113 of the Rules of Proce-
dure of the Court of First Instance, which provides that ‘the
Court of First Instance may at any time, of its own motion,
consider whether
to
exists
proceeding with an action …’ No ‘absolute bar’ is evident
from the material in the case in hand such as to justify the
Court of First Instance declaring of its own motion that the
action was inadmissible. Furthermore, the Court of First
Instance made no effort whatever to explain what might
constitute this ‘absolute bar’ capable of bringing into opera-
tion the procedure set out in Article 113 of the Rules of
Procedure. The complete lack of reasons in this regard
constitutes a very serious infringement of the fundamental
rights of defence and of the audi alteram partem principle;

— breach and improper application of Article 230 EC with
regard to the entitlement of Regione Siciliana to bring a
challenge and, consequently, breach of
the fundamental
rights of defence;

— breach and improper application of the first subparagraph
of Article 4(1) of Council Regulation (EEC) No 2052/88 of
24 June 1988, (1) as subsequently amended;

— breach of Article 9(1) of Regulation (EEC) No 4253/88 of

18 December 1988; (2)

— defective statement of reasons by virtue of inconsistency

and arbitrariness;

— defective statement of reasons by virtue of inherent contra-

diction, lack of logic and absence of grounds.

(Case C-417/04 P)

(2004/C 300/56)

(1) OJ L 185 of 15.07.1988, p. 9.
(2) OJ L 374 of 31.12.1988, p. 1.

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 29 September 2004 by Regione