Case T-4/07: Action brought on 5 January 2007 — Sanofi-Aventis v OHIM — AstraZeneca (EXANTIN)
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cardiovascular disease, pharmaceutical product, trade-mark law

C 42/44

EN

Official Journal of the European Union

24.2.2007

Form of order sought

— Order the defendant, if necessary by means of an interlocu-
tory order, to correct the material mistake in Annex I, Part
A, and replace ‘0.75 g’ with ‘0.75 Kg’;

— order the annulment of the following provisions of Directive

2006/132:

Article 3(2):

‘by 30 June 2008’

Annex I:

‘30 June 2008’

Annex I, Part A:

‘on the following crops’

Annex I, Part B:

‘— cucumbers

in greenhouses

(closed

hydroponic systems),

— plums (for processing)’

‘Member States shall request the submis-
sion of
further studies to address the
potential endocrine disrupting properties
of procymidone within two years after
the adoption of the Test Guidelines on
endocrine disruption by the Organisation
for Economic Cooperation and Develop-
ment (OECD). They shall ensure that the
notifier at whose request procymidone
has been included in this Annex provide
such studies to the Commission within
two years of the adoption of the above
test guidelines.’

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments

Council Directive 91/414 concerning the placing of plant
protection products on the market (1) provides that Member
States shall not authorise a plant protection product unless its
active substances are listed in Annex I and any conditions laid
down therein are fulfilled. The applicant seeks the partial annul-
ment of Commission Directive 2006/132 amending Directive
91/414 to include procymidone as active substance (2) insofar
as this directive i) only provides for a limited inclusion of procy-
midone in Annex I to Directive 91/414, ii) provides for specific
conditions on the authorised use and iii)
foresees a limited
period of 18 months for the validity of the limited inclusion in
Annex I.

In support of its application, the applicant submits that the
contested directive violates Articles 1(1), 2(1) and 5(1) and (4)
of Directive 91/414. Furthermore, the applicant contends that
the contested directive is inconsistent with Article 5(5) of Direc-
tive 91/414 and that the Commission therefore exceeded the
limits of its discretion.

measures as they were proposed to the Standing Committee on
the Food Chain and Animal Health and the Council without
amending them before their final adoption.

Furthermore, the applicant alleges that the contested directive
violates the applicant's legitimate expectations, as well as the
principles of sound administration, subsidiarity, proportionality,
legal certainty, equal treatment and excellence and independence
of
the
contested directive is not providing sufficient justification and
that the duty to state reasons is therefore infringed.

scientific advice. The applicant also contends

that

the applicant

Finally,
the contested directive
encroaches upon its right to conduct business activities and
interferes with its right of property.

submits

that

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market (OJ 1991 L 230,
p. 1).

(2) Commission Directive 2006/132/EC of 11 December 2006
amending Council Directive 91/414/EEC to include procymidone as
active substance (OJ 2006 L 349, p. 22).

Action brought on 5 January 2007 — Sanofi-Aventis v
OHIM — AstraZeneca (EXANTIN)

(Case T-4/07)

(2007/C 42/77)

Language in which the application was lodged: English

Parties

Applicant: Sanofi-Aventis SA (Paris, France) (represented by: R.
Gilbey, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: AstraZe-
neca AB (Södertälje, Sweden)

Form of order sought

— Annul

the decision of

the First Board of Appeal dated
10 October 2006, case R 1302/2005-1, and uphold the
appellant's contention that there exists a likelihood of confu-
sion between the marks in conflict;

The applicant moreover claims that the contested directive is
procedurally flawed as the Commission is obliged to adopt the

— order the Office for Harmonisation in the Internal Market to

bear the costs of the appellant in the present instance.

24.2.2007

EN

Official Journal of the European Union

C 42/45

Pleas in law and main arguments

Applicant for the Community trade mark: AstraZeneca AB

Furthermore, the Board of Appeal failed to apply the appro-
priate criteria in comparing the goods and failed to compare the
signs globally. Consequently the Board of Appeal erroneously
held that there was no likelihood of confusion.

Community trade mark concerned: The word mark ‘EXANTIN’ for
goods in class 5 — application No 2 694 115

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: The international and national word marks
‘ELOXATIN’ and ‘ELOXATINE’ for goods in class 5

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal failed to identify the relevant
public in its entirety, and erroneously established a hierarchy of
attentiveness between the sections of the relevant public that it
identified.

Order of the Court of First Instance/Second Chamber of
1 December 2006 — Neoperl v OHIM (Representation of a
sanitary pipe)

(Case T-97/06) (1)

(2007/C 42/78)

Language of the case: German

The President of the Court of First Instance/Second Chamber
has ordered that the case be removed from the register.

(1) OJ C 131, 3.6.2006.