Source: EURLEX
Language: en
Format: md

C 3/32 EN Official Journal of the European Communities 5.1.2002

**ORDER OF THE COURT OF FIRST INSTANCE** Ferroatla´ntica, established in Madrid, represented by D. Voillemot and O. Prost, avocats, against Commission of the European Communities (Agents: V. Kreuschitz, S. Meany and
**of 10 July 2001**
A.P. Bentley) — application for the amendment of the
operative part of the order of the President of the Court of
**in Case T-191/00: Werner F. Edlinger v Commission of** First Instance of 1 August 2001 in Case T-132/01 R Euroalliag**the European Communities** ( [1] )
es and Others v Commission, not yet published in the ECR —
the President of the Court of First Instance made an order on
_**(Action for failure to act — Actionable omissions —**_ 12 September 2001, the operative part of which is as follows:
_**Inadmissibility)**_

(2002/C 3/55) 1. _The application is dismissed._

_(Language of the case: German)_ 2. _The costs are reserved._

In Case T-191/00, Werner F. Edlinger, resident in Vienna,
represented by F. Frisch, lawyer, against the Commission of
the European Communities (Agents: U. Wölker and C. Ladenburger) — application for a declaration that the Commission
unlawfully failed to act in relation to measures taken on
31 January 2000 against the Republic of Austria by the Heads
of State or Government of the fourteen other Member States
of the European Union — the Court of First Instance (Fourth **Action brought on 20 September 2001 by Japan Tobacco**
Chamber), composed of P. Mengozzi, President and V. Tiili **Inc. and JT International S.A. against the Council of the**
and R. M. Moura Ramos, Judges; Registrar H. Jung, made an **European Union and the European Parliament**
order on 10 July 2001, the operative part of which is the
following:
**(Case T-223/01)**

1) _The case is dismissed as inadmissible._

(2002/C 3/57)
2) _The applicant is ordered to pay the costs._

_(Language of the case: English)_
( [1] ) OJ C 285 of 7.10.2000.

An action against the Council of the European Union and the
European Parliament was brought before the Court of First
Instance of the European Communities on 20 September 2001
**ORDER OF THE PRESIDENT OF THE COURT OF FIRST**
by Japan Tobacco Inc. and JT International S.A., represented
**INSTANCE**
by Mr Onno Brouwer and Mr Paul Lomas of Freshfields
Bruckhaus Deringer, London (United Kingdom)
**of 12 September 2001**

**in Case T-132/01 R: Euroalliages and Others v Com-**
The applicants claim that the Court should:
**mission of the European Communities**

—
_**(Application for interim measures — Article 108 of the**_ annul Article 7 of the Directive in its entirety; alternatively
_**Rules of Procedure)**_

— annul Article 7 of the Directive to the extent that it
(2002/C 3/56)
precludes the applicants from using their trade mark
MILD SEVEN within the European Union; and
_(Language of the case: French)_

—
order that, pursuant to Article 87 of the Rules of
Procedure of the Court of First Instance, the European
In Case T-132/01 R: Euroalliages, established in Brussels, Parliament and/or the Council of the European Union
Péchiney électrométallurgie, established in Courbevoie pay the costs of these proceedings, including those of the
(France), Vargön Alloys AB, established in Vargön (Sweden), applicants and any third parties.

5.1.2002 EN Official Journal of the European Communities C 3/33

_Pleas in law and main arguments_ **Action brought on 24 September 2001 by Houghton**
**Durferrit GmbH against the Office for Harmonisation in**
**the Internal Market**

The Applicants are the owner and the licensee of the trade
**(Case T-224/01)**
mark ‘MILD SEVEN’, used as a cigarette brand worldwide and
protected as intellectual property. The Applicants fear that the
prohibition, against using descriptors indicating that a tobacco (2002/C 3/58)
product is less harmful than others, contained in Article 7 of
Directive 2001/37, will deprive the Applicants of the possi_(Language of the case: English)_
bility of marketing their brand ‘MILD SEVEN’ in the European
Union.

An action against the Office for Harmonisation in the Internal
In support of their application, the Applicants claim that there Market was brought before the Court of First Instance of the
is no sufficient legal basis for the adaptation of Article 7 of the European Communities on 24 September 2001 by Houghton
Directive. The Directive in question is based on Articles 95 Durferrit GmbH, represented by Ms Patricia Koch Moreno of
and 133 of the EC Treaty. Neither of them provides, according Madrid (Spain). Kolone Corporation was also a party to the
to the Applicants, a sufficient basis for Article 7 of this proceedings before the Board of Appeal
Directive. Article 133 does not apply since the common
commercial policy has no relevance to Article 7. Article 95 EC
Treaty does not provide a legal basis either since there is no The applicant claims that the Court should:
need to harmonise legislation on this point for the establish
—
ment of the internal market. According to the Applicants, declare invalid the Decision no. 949/1999 dated 15 Octothere is no barrier to trade that needs to be removed. Further, ber 1999 of the Opposition Division of the Office for
the Applicants claim that Article 7 of the Directive violates Harmonisation in the Internal Market in opposition
Article 152(4)(c) EC Treaty. According to the Applicants, procedure B4905, and the decision of the First Board of
Article 95 EC Treaty is being used as a legal basis for the Appeal dated 6 July 2001 that dismissed the remedy
circumvention of the prohibition contained in Article 152(4)(c) of Appeal filed by the applicant against the previous
EC Treaty to harmonise legislation designed to protect and resolution
improve human health.

—
declare incompatible the Community trade mark filed by
Kolene Corporation, no. 40.568 NU-TRIDE, in classes 1
and 40, on the grounds of its incompatibility with the
The Applicants also claim that Article 7 of the Directive earlier trade mark belonging to the applicant,
violates their right to property and the principle of pro- no. 764.560, in classes 1, 7 and 11
portionality since it would deprive the Applicants of the use
of their trade mark in the European market. According to the — refuse the registration of Community trade mark
Applicants, Article 7 is not an appropriate means by which to no. 40.568 NU-TRIDE in classes 1 and 40
attain the objective of this Article, which is to promote health
and consumer protection. The Applicants claim that the use —
order payment of the costs of these proceedings by
of descriptors provides the consumer with information that
the holder of the foregoing Community trade mark
allows him to choose to smoke cigarettes with a lower tar and
application, Kolene Corporation.
nicotine content. Article 7 is in any event not the least
restrictive method, since provision could have been made for
the protection of existing trade marks.

_Pleas in law and main arguments_

The Applicants claim further that Article 7 of the Directive Applicant for the Com- Kolone Corporation
violates the principle of equal treatment. The Applicants make munity trade mark:
clear that they are the only tobacco producers in the European
Union who would be deprived of the use of a brand as a The Community trade Verbal mark ‘NU-TRIDE’ —
consequence of Article 7 of the Directive. mark concerned: Application no. 40.568, relating
to goods in classes 1 and 40
(chemicals for use in the treatment
of metals and metal treatment)
Finally, the Applicants submit that the grounds upon which
Article 7 of the Directive is based are insufficient. Proprietor of the right to The Applicant
the trade mark or sign
asserted by way of opposition in the opposition
proceedings: