Case T-6/05: Action brought on 12 January 2005 by DEF-TEC Defense Technology GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Germany, action for annulment (EU), aerosol, arms industry, personal weapon, trade-mark law

C 82/32

EN

Official Journal of the European Union

2.4.2005

Action brought on 10 January 2005 by V.I.C. Verband der
Internationalen Caterer in Deutschland e.V. against the
Commission of the European Communities

255 EC because essentially no reasons are given for the with-
holding of agreement to disclosure of the requested document.

(Case T-5/05)

(2005/C 82/60)

(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 January 2005 by V.I.C. Verband
der Internationalen Caterer in Deutschland e.V., represented by
K. Kühne, lawyer.

The applicant claims that the Court should:

1. annul the refusal, notified by letter of 11 November 2004,
of access to the request of the German authorities, sent to
the Commission on 12 May 1978,
for authorisation to
introduce derogating measures;

2. order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In the contested letter, the Commission rejected, pursuant to
Article 4(5) and (6) of the Regulation on Access to Docu-
ments, (1) a request
the file
from the applicant
concerning the request of the Federal Republic of Germany for
authorisation to introduce
derogating measures
pursuant to Article 27 of the Sixth VAT Directive. (2)

to consult

special

The applicant claims that the refusal of access to the request
constitutes a de facto denial of legal protection vis-à-vis the
applicant, because the dismissal of the applicant's appeal in the
main proceedings is based on the requested document. The
to grant access
applicant
infringes the Regulation on Access to Documents.

further claims

the refusal

that

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001regarding public access to European
Parliament, Council and Commission documents (OJ L 145, p. 43).
(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
- Common system of value added tax: uniform basis of assessment
(OJ L 145, p. 1).

Action brought on 12 January 2005 by DEF-TEC Defense
Technology GmbH against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case T-6/05)

(2005/C 82/61)

(Language in which the application was lodged: English)

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 12
January 2005 by DEF-TEC Defense Technology GmbH estab-
(Germany) represented by H.
lished in Frankfurt am Main,
Daniel, lawyer.

Defense Technology Corporation of America, established in
Jacksonville, Florida (USA) was also a party to the proceedings
before the Board of Appeal.

The applicant claims that the Court should:

— annul the Decision of the Second Board of Appeal of the

OHIM of 8 November 2004 in case R 493/2002-2;

— declare the invalidity of the opposition Decision of OHIM

No. 722/2002;

The applicant argues that the refusal of access and, as the case
may be, Article 4(5) of the Regulation on Access to Documents
infringe Article 1 EU and Articles 21 EC, 207 EC, 253 EC and

— order OHIM to pay the costs.

2.4.2005

EN

Official Journal of the European Union

C 82/33

Pleas in law and main arguments

casting UK Ltd, West Drayton (United Kingdom), represented
by Simon Evers Hjelmborg, lawyer.

Applicant
munity trade mark:

for

Com-

The applicant

The applicant claims that the Court should:

Community trade mark
sought:

Figurative mark ‘FIRST DEFENSE
AEROSOL PEPPER PROJECTOR’
for products in class 5 (pharma-
ceutical products etc.), 8 (hand
tools and implements etc.) and 13
- Community
(ammunition etc.)
trade mark
No
643668

application

1. annul point 55 of the Commission decision of 6 October
2004 in State Aid Case No N 313/2004 – Denmark
(C(2004)3632 final) concerning the recapitalisation of TV 2/
DANMARK A/S;

2. order the defendant to pay the costs of the proceedings.

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

Defense Technology Corporation
of America

Pleas in law and main arguments:

Mark or sign cited in
opposition:

National
figurative marks ‘FIRST DEFENSE’

international, word and

Decision of the Opposi-
tion Division:

Refusal of registration

the Board

Appeal dismissed

Decision of
of Appeal:

Pleas in law:

The contested decision relates to a recapitalisation plan for the
State-owned public service television broadcasting company
TV 2/DANMARK A/S. The recapitalisation, which comprises a
capital injection by the Danish State and conversion of debt
into equity, was deemed to be necessary as a result of the
Commission's decision of 19 May 2004 (1) whereby the
Commission required Denmark to recover unlawfully granted
State aid from TV 2/DANMARK A/S, which would, however,
have resulted in technical bankruptcy of the company.

Violation of Article 8(3) of Regu-
lation 40/94 (1). The
applicant
contests the finding that
it has
failed to furnish sufficient evidence
in order to prove that the filing of
the contested mark was with the
owner's consent.

According to the contested decision,
the Commission was
unable to discount the possibility that the recapitalisation of
TV 2 under consideration might contain elements of State aid
under Article 87(1) EC. In point 55 of the contested decision,
however, the Commission found that any element of State aid
that might be linked to the planned recapitalisation of TV 2
would be compatible with the common market under Article
86(2) EC.

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

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

Action brought on 20 January 2005 by Viasat Broadcasting
UK Ltd against the Commission of the European Commu-
nities

(Case T-16/05)

(2005/C 82/62)

(Language of the case: Danish)

In support of the form of order which it seeks, the applicant
submits that the Commission erred in law in not holding that
the
incompatible with Article
87(1) EC. That submission is based inter alia on the following
grounds:

recapitalisation plan was

— the reason why TV 2/DANMARK A/S is seeking recapitali-
sation lies in the demand for reimbursement of illegal State
aid. Consequently, authorisation to provide new aid (recapi-
talisation) would mean that Article 87(1) EC and the
Commission's decision of 19 May 2004 will be deprived of
their independent meaning;

— recapitalisation under which equity is increased to the
optimal capital structure cannot be regarded as being
compatible with the market investor principle;

— TV 2/DANMARK A/S generated a profit in 2003 without
State aid; this would suggest that the company is itself in a
position to build up its desired equity; and

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 January 2005 by Viasat Broad-

— an optimal capital structure is not necessary to enable TV 2/
DANMARK A/S to perform its public-service obligations.