Case T-264/07: Action brought on 18 July 2007 — CSL Behring v Commission and EMEA
Date: 2007-10-06
Institutions: Court of First Instance
Subjects: European Commission, European Medicines Agency, action for annulment (EU), intellectual property, market approval, medicinal product, pharmaceutical industry

C 235/12

EN

Official Journal of the European Union

6.10.2007

COURT OF FIRST INSTANCE

Action brought on 26 July 2007 — Rajani

(Dear!Net

Online) v OHIM — Artoz-Papier (ATOZ)

due to an alleged lack of reasoning and a violation of the right
to be heard.

(Case T-100/06)

(2007/C 235/21)

Language in which the application was lodged: English

Parties

Applicant: Deepak Rajani (Berlin, Germany) (represented by: A.
Dustmann, lawyer)

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

Action brought on 18 July 2007 — CSL Behring v
Commission and EMEA

(Case T-264/07)

(2007/C 235/22)

Language of the case: German

Other party to the proceedings before the Board of Appeal: Artoz-
Papier AG (Lenzburg, Switzerland)

Parties

Form of order sought

the decision of

the Second Board of
— Annulment of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 11 January 2006 (case
R 1126/2004-2)

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Deepak Rajani

Community trade mark concerned: The Community word mark
‘ATOZ’
in classes 35 and 41 — application
No 1 319 961

services

for

Proprietor of the mark or sign cited in the opposition proceedings:
Artoz-Papier AG

Applicant: CSL Behring GmbH (Marburg, Federal Republic of
Germany) (represented by: Professor C. König and F. Leinen,
Rechtsanwalt)

Defendants: Commission of
European Medicines Agency (EMEA)

the European Communities and

Form of order sought

— annul, pursuant to the first paragraph of Article 231 EC,
EMEA's decision of 24 May 2007 in the ‘Human Fibrinogen
— Application for Orphan Medicinal Product Designation
— EMEA/OD/018/07’ case, received by the applicant on
24 May 2007;

— order

the defendant

to
Article 87(2) of the Rules of Procedure of the Court of First
Instance.

costs pursuant

to pay

the

Mark or sign cited: The international and national word mark
‘ARTOZ’ for services in classes 35 and 41

Pleas in law and main arguments

Decision of the Opposition Division: Upheld the opposition in its
entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant alleges that the contested decision
was rendered in violation of Article 43(2) and (3) of the CTMR
insofar as it adopted an undue interpretation of the trademark's
registration term. According to the applicant such ultra vires
laws
interpretation of Community, national and international
amounts to a misuse of power. Furthermore,
the applicant
claims that the Board's decision is in breach of Article 8(1)(b)
CTMR. Finally, the applicant contends that both the opposition
division and the Board of Appeal have substantially infringed
the procedural safeguards of Articles 73 and 79 of the CTMR

The applicant contests EMEA's letter of 24 May 2007. The
applicant takes the view that, by that letter, the EMEA refuses in
a legally binding manner to continue the procedure for the
designation of the applicant's medicinal product as an orphan
medicinal product pursuant to Article 5(1) of Regulation (EC)
No 141/2000 (1).

The applicant relies on two pleas in law in support of its action.

The applicant submits, first, that an interpretation of Article 5(1)
of Regulation No 141/2000 to the effect that the application for
designation of a medicinal product as an orphan medicinal
product must be submitted before the application for marketing
authorisation for that medicinal product is incorrect. That provi-
sion was therefore applied incorrectly.

6.10.2007

EN

Official Journal of the European Union

C 235/13

Second, the applicant asserts that Article 5(1) of Regulation
No 141/2000 is contrary to primary law and should be declared
inapplicable pursuant to Article 241 EC in the event that it is to
be interpreted as meaning that the application for designation of
a medicinal product as an orphan medicinal product must be
submitted before the application for marketing authorisation for
that medicinal product. In that connection, it is submitted that
that interpretation infringes the fundamental Community law
principles of freedom to enjoy property rights and pursue a
trade or profession, the principle of equal treatment and the
principle of good faith.

(1) Regulation (EC) No 141/2000 of the European Parliament and of the
Council of 16 December 1999 on orphan medicinal products
(OJ 2000 L 18, p. 1).

Mark or sign cited in opposition: the various national word marks
‘TORRES’ for products in class 33 and other Community, inter-
national and national word and figurative marks which consist
of or include the term ‘TORRES’ and cover the same products
as the former.

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: appeal dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Action brought on 16 July 2007 — Torres v OHIM —
Vinícola de Tomelloso (TORREGAZATE)

(Case T-273/07)

(2007/C 235/23)

Action brought on 18 July 2007 — Ebro Puleva v OHIM —
Berenguel (BRILLO'S)

(Case T-275/07)

(2007/C 235/24)

Language in which the application was lodged: Spanish

Language in which the application was lodged: Spanish

Parties

Parties

Applicant: Miguel Torres, SA (Barcelona, Spain) (represented by:
E. Armijo Chávarri, M. Baz de San Ceferino and A. Castán Pérez-
Gómez, lawyers)

Applicant: Ebro Puleva, SA (Madrid, Spain)
P. Casamitjana Lleonart, lawyer)

(represented by:

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

Other party to the proceedings before the Board of Appeal of OHIM:
Luis Berenguel, S.L.

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

Form of order sought

Other party to the proceedings before the Board of Appeal of OHIM:
Vinícola de Tomelloso S.C.L.

— annul the decision of the Second Board of Appeal of the
OHIM of 21 May 2007 in case No R 493/2006-2
(concerning opposition proceedings No B 705 790).

Form of order sought

Pleas in law and main arguments

— annul the decision of the Second Board of Appeal of the
OHIM of 2 May 2007 in case No R 610/2006-2 and order
the OHIM to pay the costs.

Pleas in law and main arguments

Applicant
S.C.L.

for a Community trade mark: Vinícola de Tomelloso

Community trade mark concerned: the word mark ‘TORREGAZATE’
(application No 3.134.665) for products in class 33 (wines,
spirits and liqueurs).

Applicant for a Community trade mark: LUIS BERENGUEL, S.L.

Community trade mark concerned: the word mark ‘BRILLO'S’ for
goods in classes 29, 30 and 31 (application No 2.984.995).

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

Mark or sign cited in opposition: the Spanish figurative mark ‘bril-
(mark No 922.772) for products in class 30 and the
lante’
Spanish figurative mark ‘brillante’
for
goods in class 29.

(mark No 2.413.459)

Decision of the Opposition Division: opposition dismissed.

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

Decision of the Board of Appeal: appeal dismissed.