Source: EURLEX
Language: en
Format: md

C 156/34 EN Official Journal of the European Communities 29.6.2002

The applicant claims that the Court should: Finally, the applicant argues that it cannot be accused of
deception and that it has not acted with manifest negligence.

—
annul Decision REM 06/01 of 14 January 2002 and allow
a rebate of the anti-dumping duties imposed to SFT
Gondrand Frères.
( [1] ) Council Regulation (EC) No 3319/94 of 22 December 1994
imposing a definitive anti-dumping duty on imports of urea
ammonium nitrate solution originating in Bulgaria and Poland,
exported by companies not exempted from the duty, and collecting definitively the provisional duty imposed (OJ 1994 L 350,
p. 20).

_Pleas in law and main arguments_

The applicant is an authorised customs agent. In 1997 it
released for circulation three cargo loads of urea ammonium **Action brought on 15 April 2002 by Grupo El Prado-**
nitrate solution from Poland. When making the customs **Cervera, S.L. against Office for Harmonisation in the**
declaration the applicant applied for an exemption from anti- **Internal Market**
dumping duty which applies to imports of that product from
Poland. Following checks, the French customs authorities took
the view that anti-dumping duty was due and demanded **(Case T-117/02)**
payment of the customs duty from the applicant.

(2002/C 156/64)

_(Language of the case: Spanish)_
The applicant then requested a rebate of the anti-dumping
duty and the corresponding VAT. That request was sent by the
French authorities to the Commission, which refused a rebate
of the anti-dumping duties. The applicant is challenging that An action against the Office for Harmonisation in the Internal
decision in this case. Market was brought before the Court of First Instance of the
European Communities on 15 April 2002 by Grupo El PradoCervera, S.L., whose registered office is at Valencia (Spain),
represented by Patricia Koch Moreno.

The applicant claims that anti-dumping duties are not payable,
as a result of EC Regulation No 3319/94( [1] ). The applicant The applicant claims that the Court should:
states that the goods were invoiced directly by the Polish
company, Zaklady Azotowe Pulawy, to a French company, —
declare the Decision of 12 February 2002 of the First
Evertrade. The price of the goods was, furthermore, higher
Board of Appeal of the OHIM rejecting the opposition
than the minimum import price. In those circumstances the
filed against Community trade mark application No
applicant claims that to subject the contested imports to anti1021229, CHUFAFIT, in Classes 29 and 31 incompatible
dumping duties is unjustified.
with Article 8(1)(b) of Regulation (EC) No 40/94 on the
Community Trade Mark and annul that decision;

— declare that there is a likelihood of confusion between
The applicant also claims that it was justifiable for the duties Community trade mark application No 1021229, CHUto be subject to a rebate in this case in the light of one FAFIT, in classes 29 and 31, and Spanish trade mark
particular factor. According to the applicant, the idea is No 1778419, CHUFI, registered in respect of goods in
to prevent dumping by means of import routes involving Class 29, and Spanish trade mark No 2063328, CHUFI,
intermediate companies in third countries. That danger has registered in respect of goods in Class 31;
been averted here, since the first buyer from the Polish exporter
was a French company. Furthermore, the regulation in question —
refuse Community trade mark application No 1021229,
poses difficulties of interpretation. The applicant claims that
CHUFAFIT, in Classes 29 and 31; and, finally,
the French authorities interpreted it in the same way as the
applicant. It also adds that its omission is a purely formal one

—
and has not had any real effect on the proper functioning of order the defendant and, if appropriate, the intervener to
the customs system. pay the costs of the proceedings.

29.6.2002 EN Official Journal of the European Communities C 156/35

_Pleas in law and main arguments_ The applicant claims that the Court should:

Person applying to regis- D.J. Debuschewits — partially annul Decision R 368/2000-2 of the Second
ter the Community trade Board of Appeal of 17 January 2002 to the extent that
mark: the applicant was ordered to bear its own costs in the
opposition and appeal proceedings and that reimburseCommunity trade mark CHUFAFIT — application for ment of the appeal fee was not ordered;
concerned: registration No 1021229 —
application in respect of goods in
Classes 29 and 31. — order the Office to pay the costs.

Proprietor of the trade The applicant company.
mark or distinctive sign
relied on in the opposition proceedings:
_Pleas in law and main arguments_

Trade mark or distinc- Spanish Trade Mark CHUFI, registive sign relied on in the tered in respect of goods in
opposition proceedings: Class 29, and Spanish graphicThe applicant filed an application for registration of the word
denominative mark CHUFI, with
mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
specific distinction, registered in
the Office for Harmonisation in the Internal Market (applirespect of goods in Class 31.
cation no 156463). Vitakraft-Werke Wührmann & Sohn
opposed that application. The opposition was based on the
Decision of the Oppo- Appeal against the Opposition
German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
sition Division: Class 5.

Decision of the Board of Appeal against the decision of the
Appeal: Opposition Division dismissed.
As a result of a private settlement with the opposing party, the
Grounds of appeal: Unlawful application of applicant limited the category of goods by removing some of
Article 8(1)(b) of Regulation the goods claimed in Class 5. The opposing party later
(EC) 40/94 on the Community withdrew its opposition but sought a decision on costs.
Trade Mark.

The Opposition Division decided that the applicant should
bear the costs of the opposition procedure. The Board of
Appeal set this decision aside and ordered each of the parties
to pay its own costs in respect of the opposition and appeal
proceedings.
**Action brought on 17 April 2002 by Sunrider Corpor-**
**ation against the Office for Harmonisation in the Internal**
**Market (Trade Marks and Designs)**
The applicant is appealing against the decision of the Board of
Appeal and claims that Article 81(4) of Council Regulation
**(Case T-124/02)** (EC) No 40/94( [1] ), not Article 81(3), is applicable in the present
case. Furthermore, the defendant failed to consider that the
requirements of Rule 51 of the implementing regulation( [2] )
(2002/C 156/65)
were satisfied so that the Board of Appeal should have ordered
reimbursement of the appeal fee. Finally, the Board of Appeal
failed to comply with its obligation to state reasons.
_(Language of the case to be determined pursuant to Article 131(2)_
_of the Rules of Procedure — language in which the application was_
_submitted: German)_

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ 1994 L 11, p. 1)
An action against the Office for Harmonisation in the Internal
( [2] ) Commission Regulation (EC) No 2868/95 of 13 December
Market (Trade Marks and Designs) was brought before the 1995 implementing Council Regulation (EC) No 40/94 on the
Court of First Instance of the European Communities on Community trade mark (OJ 1995 L 303, p. 1)
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wührmann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.