Case T-405/04: Action brought on 11 October 2004 by Borco-Marken-Import Matthiesen GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), alcoholic beverage, trade mark, trade-mark law

18.12.2004

EN

Official Journal of the European Union

C 314/23

Action brought on 6 October 2004 by MobilCom Aktien-
the European
gesellschaft against

the Commission of
Communities

(Case T-397/04)

(2004/C 314/55)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 6 October 2004 by MobilCom
(Germany), represented by K.
Aktiengesellschaft, Büdelsdorf
Jacobsen, U. Wellmann and T. Sharpe.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities of 14 July 2004 concerning aid C5/03 (ex
N 239/03);

— in the alternative, annul Article 1 of the decision of the
Commission of the European Communities of 14 July 2004
concerning aid C5/03 (ex N 239/03),
in so far as it is
stated in the final clause ‘ … provided that Germany satis-
fies the condition referred to in Article 2 of this Decision’,
and annul Articles 2 and 3 of that decision in their entirety.

Pleas in law and main arguments:

By the contested decision, State aid granted to the applicant by
Germany was declared to be compatible with the common
market, subject to compliance by Germany with the condition
referred to in Article 2 of that decision. As a result of that
condition, the applicant is required to close its ‘online shop’ for
seven months.

The applicant submits, first, that the Commission has no mate-
rial competence. Since the applicant exercises its activity as an
intermediary for the sale of mobile telephony contracts exclu-
sively in Germany, the grant of State aid cannot prejudice trade
between the Member States.

Moreover, the applicant argues that there is no appropriate
legal basis for the imposition of such a condition and that
there has therefore been an infringement of the EC Treaty or a
provision to be applied in implementing the Treaty.

therefore alleges that

According to the applicant,
the condition imposed on the
applicant is arbitrary as the reasons given for it are inadequate.
The applicant
the Commission either
erred in the exercise of it discretion or failed to exercise that
discretion. Furthermore, the Commission failed to show clearly
that the contested decision is necessary, appropriate and also
the least restrictive measure and thus failed to comply with the
principle of proportionality.

Action brought on 11 October 2004 by Borco-Marken-
Import Matthiesen GmbH & Co. KG against the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case T-405/04)

(2004/C 314/56)

(Language of the case: German)

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 11
October 2004 by Borco-Marken-Import Matthiesen GmbH &
Co. KG, Hamburg (Germany),
represented by M. Wolter,
lawyer.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 13 August 2004 in Case R
912/2002-2;

— declare that the provisions of Article 7(1)(b) and (c) and
7(2) do not prevent publication of the mark applied for,
‘Caipi’,
for goods in Class 33 (alcoholic beverages (not
including beer));

— order the defendant to pay the costs.

C 314/24

EN

Official Journal of the European Union

18.12.2004

Pleas in law and main arguments

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

The applicant

The trade mark applied
for:

Word mark ‘Caipi’
for goods in
Class 33 (alcoholic beverages (not
including beer)), application No
2 655 967

Decision of
iner:

the exam-

Refusal
applied for

to register

the mark

Decision of
of Appeal:

the Board

Dismissal of the appeal

No

(ERDF

94.02.10.036

By the contested decision, the Commission reduced the Com-
munity assistance from the ERDF Structural Funds for the
Operational Programme RESIDER II North Rhine-Westphalia
1995-1999
ARINCO
No 94.DE.16.051) to EUR 72 794 851.67 and refused to pay
the German authorities the balance of EUR 2 268 988.33. The
reason for the reduction is that, compared with the indicative
financial plan, recourse to the programme was lower with
respect to certain measures and higher with respect to others.
A balance between the more and less heavily used measures
was not achieved within the individual priorities of
the
programme but rather at the level of the programme as a
whole.

/

Grounds of claim:

Infringement of Article 7(1)(b) and
(c) and of Article 12 of Regulation
(EC) No 40/94.
(1) Wrongful
failure to take account of earlier
national registrations.

In support of its action, the applicant first of all observes that,
under Article 24 of Regulation No 4253/88, (1) Community
assistance may be reduced only if there has been a significant
change affecting the nature or conditions of the operation or
measure. In the applicant's view, the adjustments made do not
constitute such a significant change.

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

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 11 October 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Case T-414/04)

(2004/C 314/57)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 11 October 2004 by the Federal
Republic of Germany, represented by C.-D. Quassowski and C.
von Donat, lawyer.

The applicant claims that the Court should:

— annul the Commission decision notified by letter of the
Directorate-General for Regional Policy of 9 August 2004
in so far as the Community assistance from the European
Regional Development
the Operational
Fund
Programme RESIDER II North Rhine-Westphalia 1995-
1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051)
was reduced to EUR 72 794 851.67 and payment to the
German authorities of the balance of EUR 2 268 988.33
was refused;

for

— order the Commission to pay the costs.

If those adjustments are to be regarded as a significant change,
the applicant submits that the Commission gave prior approval
in its ‘Guidelines on the closure of operational programmes
(1994-1999) of the Structural Funds’ (SEC(1999) 1316).

The applicant also complains that the Commission abused its
discretion by failing to even exercise it and that there are errors
in the reasoning for the contested decision.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC) No
2052/88 as regards coordination of the activities of the different
Structural Funds between themselves and with the operations of the
European Investment Bank and the other existing financial instru-
ments (OJ 1988 L 374, p. 1).

Action brought on 8 October 2004 by Bunker & BKR, S.L.
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-423/04)

(2004/C 314/58)

(Language of the case: Spanish)

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 8
October 2004 by Bunker & BKR, S.L., established in Almansa
(Spain), represented by José Enrique Astiz Suárez, lawyer.