Source: EURLEX
Language: en
Format: md

C 68/4 EN Official Journal of the European Communities 16.3.2002

**Appeal brought on 6 December 2001 by Procter &** at the relevant date and, if not, whether the difference is
**Gamble Company against the judgment delivered on** perceptible, rendering it apt to confer distinctive character
**19 September 2001 by the Second Chamber of the Court** on the Marks;
**of First Instance of the European Communities in case**
**T-128/00** ( [1] ) **between Procter & Gamble Company and** —
in failing to assess whether the specific pattern (speckles
**Office for Harmonisation in the Internal Market (Trade**
and square or triangular inlays in the centre and on the
**Marks and Designs) (OHIM)**
upper surface of the tablet) was already part of the usual
get-ups of the tablets on the market at the relevant date
**(Case C-473/01 P)** and, if not, whether the difference is perceptible, rendering
it apt to confer distinctive character on the Marks.

(2002/C 68/08)

( [1] ) OJ C 192, 8.7.2000, p. 25.

An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance
of the European Communities in case T-128/00 between
Procter & Gamble Company and Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) was
brought before the Court of Justice of the European Communities on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
**Action brought on 6 December 2001 by the Commission**
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.
**of the European Communities against the Hellenic**
**Republic**
The Appellant claims that the Court should:
**(Case C-475/01)**

—
annul the judgment; insofar as the remainder of the
action was dismissed;
(2002/C 68/09)

—
order the OHIM to pay the costs both at first instance
and on appeal.

An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 6 Decem_Pleas in law and main arguments_ ber 2001 by the Commission of the European Communities,
represented by Maria Kondou-Durande and Enrico Traversa,
Legal Advisers.
The Appellant submits that the Court of First Instance erred in
the following respects:

The Commission claims that the Court should:

—
in deeming it unnecessary to decide whether the distinctive character of the Mark should be assessed by reference

—
to the date on which the application for registration is declare that, by maintaining in force excise duty on ouzo
filed or the date of actual registration; at a lower rate than that applied to other alcoholic
beverages, the Hellenic Republic has failed to fulfil its
— in holding that the level of attention given by the average obligations under the first paragraph of Article 90 of the
consumer to the shape and colours of washing machine EC Treaty;
and dishwasher tablets is not high;

—
order the Hellenic Republic to pay the costs.

—
in deeming it appropriate to ascertain whether the Marks
applied for will enable the members of the public targeted
to distinguish the products from those having a different
trade origin when they come to select a product for
purchase; _Pleas in law and main arguments_

—
in holding that the bevelled edges, slightly rounded
corners or chamfered edges of the tablets are not likely to Law No 2127/93 transposes Directive 92/83/EEC( [1] ) into
be perceived by the average consumer as a distinctive Greek law. That Law sets the basic rate of excise duty at GRD
feature of the shape claimed, capable of distinguishing it per 100 litres of pure alcohol. However, Article 26 of the Law
from other washing machine or dishwasher tablets and provides for a 50 % reduction in the basic rate with regard to
in failing to assess whether such features were already ouzo. Thus, for that particular product the excise duty amounts
part of the usual get up(s) of thetablets on the market to only GRD per 100 litres of pure alcohol.