Case T-501/04: Action brought on 23 December 2004 by Bodegas Franco-Españolas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM))
Date: 2005-02-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), alcoholic beverage, trade-mark law

19.2.2005

EN

Official Journal of the European Union

C 45/27

Action brought on 10 December 2004 by Pergan GmbH
against the Commission of the European Communities

(Case T-474/04)

(2005/C 45/59)

(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 10 December 2004 by Pergan
GmbH, Bocholt (Germany), represented by M. Klusmann and F.
Wiemer, lawyers.

The applicant claims that the Court should:

1. annul Decision SG-Greffe (2004) D/204343 of 1 October
2004 in so far as the applicant's request for removal of all
in the definitively published
references to the applicant
version of the Commission's decision of 10 December 2003
imposing fines in Case COMP/E-2/37.857 – Organic Perox-
ides was refused;

2. order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission refused in part the
applicant's request of 13 July 2004 for removal of all references
to conduct of the applicant allegedly contrary to cartel law in
the definitively published version of the Commission's decision
of 10 December 2003 imposing fines in Case COMP/E-2/
37.857 – Organic Peroxides.

In support of its action, the applicant claims, first, that, under
Article 21 of Regulation No 17/62, the published version of a
decision imposing fines for an infringement may name only
the participating undertakings. Since the applicant was not the
addressee of the decision imposing fines, the Commission is
prohibited from publishing its findings in respect of the appli-
cant. Moreover,
it was impermissible for the Commission to
assume that a decision finding an infringement on the part of
the applicant would be adopted. In the applicant's view, the
Commission has no competence under Regulation No 17/92 to
adopt such a decision and is unable to establish a legitimate
interest in doing so. Finally, the applicant alleges infringement
of the right to an effective legal remedy laid down in the first
paragraph of Article 47 of the Charter of Fundamental Rights
the applicant
of
argues that, although the Commission alleges that it is guilty of
comprehensive breaches of cartel law, it omitted to address the
decision imposing fines to it and thus restricted its ability to
avail itself of a legal remedy.

the European Union.

In that connection,

Action brought on 23 December 2004 by Bodegas Franco-
Españolas S.A. against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM))

(Case T-501/04)

(2005/C 45/60)

(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 23
December 2004 by Bodegas Franco-Españolas S.A., of Logrono
(Spain), represented by María Emilia López Camba, of
the
Madrid Bar,

The applicant claims that the Court should:

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

25 October 2004, in Case R 513/2002-1;

— order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for the Com-
munity mark:

Community
applied for:

mark

Holder of the mark or
sign relied on in the
opposition proceedings:

Opposing mark or sign:

Decision of the Opposi-
tion Division:

The applicant

Word mark Royal,
Class 33 (alcoholic
except beers).

for goods in
beverages,

Compañía General da Agricultura
das Vinhas do Alto Douro S.A.

figurative

Portuguese
mark
ROYAL BRANDE, No 122 170,
Community word mark ROYAL
FEITORIA, No 418.301 and inter-
national word mark ROYAL
COMPANY
OPORTO WINE
for
(PORTUGAL), No 174 788,
goods in Class 33.

Opposition upheld on the basis of
Community mark No 418 301
registration
and application for
dismissed.

Decision of
of Appeal:

Grounds:

the Board

Appeal dismissed.

Incorrect interpretation of Article
8(1)(b) of Regulation (EC) No
40/94.