Case T-466/04: Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-03-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cheese, trade-mark law

C 69/18

EN

Official Journal of the European Union

19.3.2005

The applicants further submit that both contested regulations
are vitiated by the infringement of
fundamental procedural
requirements provided by Regulation 2026/97 (4) and Regu-
lation 384/96 respectively as well as by the Anti-dumping
agreement and the Agreement on subsidies and countervailing
measures, having imposed anti-dumping and countervailing
measures on the basis of a Community of 25 Member States
even though the investigation was initiated and conducted on
the basis of a 15 Member States.

Action brought on 19 November 2004 by Elisabetta Dami
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

(Case T-466/04)

(2005/C 69/35)

The applicants also contend that Regulation 1628/2004
imposes countervailing duties in inappropriate amounts in
respect of the Indian DEPB post-export scheme thus violating
Regulation 2026/97, the Agreement on subsidies and counter-
vailing measures and the principle of proportionality, commit-
ting a manifest error of assessment and breaching fundamental
procedural requirements.

The applicants also invoke violations of Regulations 2026/97
and 384/96 respectively, of the anti-dumping agreement and
the Agreement on subsidies and countervailing measures, as
well as a manifest error of assessment, contending that the
contested measures base material injury determination on data
made unreliable by the existence of anti-competitive market
sharing and price fixing agreements between the members of
the Community industry, confirmed and sanctioned by a deci-
sion of the Commission itself.

(Language in which the application was submitted: French)

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 19
November 2004 by Elisabetta Dami, residing in Milan (Italy),
represented by Paolo Guido Beduschi and Silvia Giudici,
lawyers.

The Stilton Cheese Makers Association was also a party to the
proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

— establish that the letter of 4 June 2004, sent to the Office
and signed jointly does not contain a statement intended to
bring an end to the proceedings before the Board of
Appeal, but is only an application for a stay of proceedings;

— annul the decision of the Second Board of Appeal of the
Office of 20 September 2004 in Case R 973/2002-2 and
refer the case back to the Board of Appeal;

the applicants contend that

Finally,
the contested measures
respectively violate Article 3 paragraph 2 of Regulation 384/96
and Article 8 paragraph 7 of Regulation 2026/97 in failing to
remove the effects of other factors in determining its final
injury analysis and thereby attributing injury caused by other
factors to Indian imports.

— order the Office to pay the costs.

Pleas in law and main arguments

(1) OJ L 295, 18.9.2004, p. 4.
(2) OJ L 295, 18.9.2004, p. 10.
(3) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community, OJ L 56, 6.3.1996, p. 1.

(4) Council Regulation (EC) No 2026/97 of 6 October 1997 on protec-
tion against subsidized imports from countries not members of the
European Community, OJ L 288, 21.10.1997, p. 1.

Applicant
munity trade mark:

for

Com-

Community trade mark
sought:

The applicant

goods

mark
for

‘GERONIMO
Word
STILTON’
and/or
services in Class 16 (books etc.),
Class 25 (clothing etc.), Class 28
(games etc.), Class 29 (meat etc.),
Class 30 (cake dough etc.) and
Class 41 (services rendered in the
field of education etc.) – Applica-
tion No 1345503

19.3.2005

EN

Official Journal of the European Union

C 69/19

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

Mark or sign cited in
opposition:

The Stilton Cheese Makers Asso-
ciation

National word mark ‘STILTON’;
registered designations of origin
WHITE STILTON CHEESE and
BLUE STILTON CHEESE

Decision of the Opposi-
tion Division:

Opposition allowed for Classes 29
and 30

— establish that the letter of 4 June 2004, sent to the Office
and signed jointly does not contain a statement intended to
bring an end to the proceedings before the Board of
Appeal, but is only an application for a stay of proceedings;

— annul the decision of the Second Board of Appeal of the
Office of 20 September 2004 in Case R 982/2002-2 and
refer the case back to the Board of Appeal;

Decision of
of Appeal:

the Board

Pleas in law:

The Board of Appeal held that as
a result of amendments to the
specification of the relevant goods,
in accordance with a joint letter
from the parties of 4 June 2004,
the opposition had been with-
drawn and the proceedings had
therefore been terminated. Since
according to the Board of Appeal,
the only question to be decided
was the allocation of costs, each
party was ordered to bear the fees
and expenses of
the opposition
and appeal proceedings which it
had itself incurred.

— order the Office to pay the costs.

Pleas in law and main arguments

a

stay of

In support of its application, the
applicant submits that the letter of
4 June 2004 contained only an
application for
the
proceedings in order to allow the
parties to resolve between them-
selves the issue, which is still
in
dispute,
other
namely which
goods apart from dairy products
and cheese should be removed
from Class 29 in order to enable
the party in opposition to with-
draw its opposition. The Board of
Appeal erred in holding that the
applicant, having
accepted the
application for a stay of proceed-
ings, had agreed to what the party
in opposition was requesting.

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

goods

mark
for

‘GERONIMO
Word
STILTON’
and/or
services in Class 16 (books etc.),
Class 25 (clothing etc.), Class 28
(games etc.), Class 29 (meat etc.),
Class 30 (cake dough etc.) and
Class 41 (services rendered in the
field of education etc.) – Applica-
tion No 1345503

Action brought on 19 November 2004 by Elisabetta Dami
the Office for Harmonisation in the Internal
against
Market (Trade Marks and Designs) (OHIM)

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

The Stilton Cheese Makers Asso-
ciation

(Case T-467/04)

(2005/C 69/36)

(Language in which the application was submitted: French)

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 19
November 2004 by Elisabetta Dami, residing in Milan (Italy),
represented by Paolo Guido Beduschi and Silvia Giudici,
lawyers.

The Stilton Cheese Makers Association was also a party to the
proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

Mark or sign cited in
opposition:

National word mark ‘STILTON’;
registered designations of origin
WHITE STILTON CHEESE and
BLUE STILTON CHEESE

Decision of the Opposi-
tion Division:

Opposition allowed for Classes 29
and 30