Source: EURLEX
Language: en
Format: md

22.3.2003 EN Official Journal of the European Union C 70/3

5. Does this apply also where it may be assumed that the
person will be released after an insignificant, reasonable
time, but must then submit to treatment for drug abuse
and will not be able to take up employment until he has
completed additional school education?

6. Is Article 14(1) of Decision No 1/80 to be interpreted as
meaning that the court requires to take into account a
change in circumstances which occurs after the most
recent administrative decision and which is favourable to
the person concerned such that it would preclude the
application of any of the limitations in Article 14 of
Decision No 1/80?

**Appeal brought on 7 January 2003 by Matratzen Concord**
**GmbH, formerly Matratzen Concord AG, against the**
**judgment delivered on 23 October 2002 by the Fourth**
**Chamber of the Court of First Instance of the European**
**Communities in Case T-6/01 between Matratzen Concord**
**GmbH, formerly Matratzen Concord AG, and the Office**
**for Harmonisation in the Internal Market (Trade Marks**
**and Designs)**

**(Case C-3/03 P)**

(2003/C 70/06)

An appeal against the judgment delivered on 23 October 2002
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-6/01 between Matratzen
Concord GmbH, formerly Matratzen Concord AG, and the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) was brought before the Court of Justice of the
European Communities on 7 January 2003 by Matratzen
Concord GmbH, represented by Dr Wolf-W. Wodrich,
Rechtsanwalt, Huyssenallee 58-64, D-45128 Essen, with an
address for service in Luxembourg, assisted by Patentanwälte
Zenz, Helber, Hosbach & Partner, Huyssenallee 58-64, D45128 Essen.

The appellant claims that the Court should:

—
set aside the judgment of the Court of First Instance of
the European Communities of 23 October 2002 in Case
T-6/01( [1] ),

—
reject the opposition of the other party to the proceedings
before the Board of Appeal of 21 April 1998 (OHIM ref.:
B 32 500),

—
order OHIM and the other party to the proceedings
before the Board of Appeal to pay the costs of the
proceedings before the Opposition Division and before
the Board of Appeal of OHIM, as well as the costs of the
proceedings on the action and on this appeal.

_Pleas in law and main arguments_

—
Infringement of Article 8(1)(b) of Regulation No 40/
94; the trade mark applied for, ‘MATRATZEN markt
CONCORD’, which consists of three words and a figurative element, and the opposing earlier trade mark, ‘Matratzen’, are not similar, but completely different. The Court
of First Instance did not base its assessment on the overall
impression created by the marks and thus failed to have
regard to the principles established in the judgment of
the Court of Justice in Case C-251/95 (SABEL). The
finding that the word ‘MATRATZEN’ alone is the dominant feature of the trade mark applied for is contrary to
the rules of logic and to experience.

—
Breach of the principle of the free movement of goods
(Articles 28 and 30 EC); the opposition based on the
earlier mark is an abuse of a formal legal position. This
was not sufficiently assessed by the Court of First Instance.

( [1] ) OJ 2003 C 19.

**Appeal brought on 13 January 2003 by the Commission**
**of the European Communities against the judgment deliv-**
**ered on 25 October 2002 by the First Chamber of the**
**Court of First Instance of the European Communities in**
**case T-5/02 between Tetra Laval BV and the Commission**
**of the European Communities**

**(Case C-12/03 P)**

(2003/C 70/07)

An appeal against the judgment delivered on 25 October 2002
by the First Chamber of the Court of First Instance of the
European Communities in case T-5/02 ( [1] ) between Tetra Laval
BV and the Commission of the European Communities,
was brought before the Court of Justice of the European
Communities on 13 January 2003 by the Commission of the
European Communities, represented by Michel Petite,Anthony
Whelan and Per Hellström, acting as agents, with an address
for service in Luxembourg.

The Appellant claims that the Court should:

—
annul the judgment of the Court of First Instance of
25 October 2002 in case T-5/02, Tetra Laval BV v
Commission;

—
order Tetra Laval BV to pay the Commission’s costs.