Case C-29/05 P: Appeal brought on 28 January 2005 (fax: 25 January 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 10 November 2004 by the Fourth Chamber of the Court of First Instance in Case T-164/02 between Kaul GmbH and Office for Harmonisation in the Internal Market (other party to the proceedings before the Board of Appeal of OHIM: Bayer AG)
Date: 2005-04-02
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, General Court (EU), action for annulment (EU), chemical product, food preserving, trade-mark law

2.4.2005

EN

Official Journal of the European Union

C 82/11

Is the declaration made in an export declaration that
the
product in respect of which a refund is sought is of Com-
munity origin information to which a penalty may attach
under Article 51(2) of Regulation (EC) No 800/1999 (1)
in
conjunction with Article 5(4) thereof?

(1) OJ 1999 L 102, p. 11.

Appeal brought on 28 January 2005 (fax: 25 January 2005)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 10 November 2004 by the Fourth Chamber of the
Court of First Instance in Case T-164/02 between Kaul
GmbH and Office for Harmonisation in the Internal Market
(other party to the proceedings before the Board of
Appeal of OHIM: Bayer AG)

(Case C-29/05 P)

(2005/C 82/23)

(Language of the case: German)

An appeal against the judgment delivered on 10 November
2004 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-164/02 between Kaul
GmbH and Office for Harmonisation in the Internal Market (Trade
Marks and Designs) was brought before the Court of Justice of
the European Communities on 28 January 2005 (fax: 25
January 2005) by the Office for Harmonisation in the Internal
Market (Trade Marks and Designs), represented by Alexander
the Office, and Gregor
von Mühlendahl, Vice President of
Schneider, a member of the Industrial Property Litigation Unit,
the other party to the proceedings before the Board of Appeal
of OHIM having been Bayer AG.

The appellant claims that the Court should:

1. set aside the contested judgment;

Pleas in law and main arguments

1. The Court of First

Instance infringed Article 43(2) of
Council Regulation (EC) No 40/94 of 20 December 1993
on the Community trade mark (OJ 1994 L 11, p. 1) (‘the
CTMR’) and Rules 16(3) and 20(2) of Commission Regu-
lation (EC) No 2868/95 of 13 December 1995 imple-
menting Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ 1995 L 303, p. 1) by obliging the
Board of Appeal of the Office, by virtue of continuity in
terms of functions, to take into consideration new submis-
sions of fact and new evidence in opposition proceedings,
even though the party to the proceedings did not lodge
those submissions or submit that evidence within the time-
limit set by the Opposition Division. The obligation to
examine evidence submitted for the first time before the
Board of Appeal, which the Court of First Instance infers in
inter partes proceedings from continuity in terms of func-
tions, has no basis in the provisions of the CTMR or the
implementing regulation.

2. The Court of First Instance infringed Article 74(2) of the
CTMR by requiring the Board of Appeal to have regard to
new submissions of fact and new evidence even though the
time-limits applicable to such submissions are ‘mandatory
time-limits’ in proceedings before the Opposition Division
and the opposing party did not lodge those submissions or
submit that evidence within the time-limit set by the Oppo-
sition Division.

3. The Court of First Instance also infringed Article 74(2) of
the CTMR by allowing application of
that provision in
appeal proceedings only where new submissions are lodged
or new evidence submitted after the expiry of the time-limit
for substantiating the appeal.

Action brought on 28 January 2005 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-30/05)

(2005/C 82/24)

(Language of the case: French)

2. refer the case back to the Court of First Instance for a deci-

sion on the additional pleas in law;

3. order the other parties to the proceedings to pay the costs

of the appeal proceedings.

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 28 January 2005 by the Commission of the European
Communities, represented by C.F. Durand and F. Simonetti,
acting as Agents, with an address for service in Luxembourg.