Source: EURLEX
Language: en
Format: md

C 227/20 EN Official Journal of the European Communities 11.8.2001

**Action brought on 23 April 2001 by Christine Janusch** **Action brought on 23 April 2001 by BioID AG against**
**against the European Central Bank** **the Office for Harmonisation in the Internal Market**
**(Trade Marks and Designs)**

**(Case T-90/01)**
**(Case T-91/01)**

(2001/C 227/39)
(2001/C 227/40)

_(Language of the case: German)_
_(Language of the case: German)_

An action against the European Central Bank was brought
before the Court of First Instance of the European Communities An action against the Office for Harmonisation in the Internal
on 23 April 2001 by Christine Janusch, residing in Dreieich Market (Trade Marks and Designs) was brought before the
(Germany), represented by Boris Karthaus, Rechtsanwalt, with Court of First Instance of the European Communities on
an address for service in Luxembourg. 23 April 2001 by BioID AG, of Berlin (Germany), represented
by Axel Nordemann, Lawyer.

The applicant claims that the Court should:
The applicant claims that the Court should:
— annul the decision of the defendant addressed to the

—
applicant of 5 February 2001; annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade

—
order the defendant to make a number of payments plus Marks and Designs) of 20 February 2001 (Appeal
interest to the applicant; R 538/1999-2) and the decision of the examiner Robert
Kliyn Brinkema of the Office for Harmonisation in the

—
order the defendant to pay the costs. Internal Market (Trade Marks and Designs) of 25 June
1999 (concerning application file number 873943);

—
order the defendant to admit for publication trade mark
_Pleas in law and main arguments_ 873943, logo: BioID. [®]

—
order the defendant to pay the costs.
The applicant was employed by the defendant from July 1998
and assigned to salary band C. In August 2000, she applied for
confirmation of her classification and of assignment to salary
band D, with retrospective effect from 1 January 2000. She _Pleas in law and main arguments_
left her employment with the defendant in September 2000.

Applicant for the Com- BioID AG (formerly D.C.S. Dialog
On 28 November 2000, the Executive Board of the defendant munity trade mark: Communication Systems AG)
decided to carry out a reclassification of certain posts, whereby
the applicant’s post of ‘Administrative Assistant in the Protocol The trade mark applied the word mark and figurative
and Conferences Division’ was assigned to salary band D as for: mark BioID. [®]
‘Meeting and Conference Assistant’.
Goods or services con- goods and services in Classes 9,
cerned: 38 and 42
By a letter of 5 February 2001, the defendant decided that,
although the applicant’s post as ‘Meeting and Conference Decision contested refusal of registration by the
Assistant’ had been assigned to salary band D, the defendant before the Board of examiner
was not in a position to make the applicant’s new classification Appeal:
in salary band D retrospective, as the Executive Board had
decided not to apply the decision of 28 November 2000 Decision of the Board of dismissal of the applicant’s appeal
retrospectively to employees who had left the defendant in the Appeal:
meantime.

Grounds of claim: — misapplication of Article
7(1)(c) of Regulation (EC)
The applicant makes three pleas in law against the decision,
No 40/94 ( [1] )
namely that it was not sufficiently reasoned, infringed the
general principle of equal treatment, and was contrary to the — the trade mark applied for
principles of good faith and fair dealing. is, simply on account of its
graphic configuration, not a
descriptive indication and it
has distinctive and independent graphics

11.8.2001 EN Official Journal of the European Communities C 227/21

— the verbal element contained **Action brought on 27 April 2001 by Mystery Drinks**
in the trade mark applied for **GmbH against the Office for Harmonisation in the**
is not in itself subject to any **Internal Market (Trade Marks and Designs)**
absolute ground for refusal
— there is no ground for refusal **(Case T-99/01)**
on the basis of a lack of dis
tinctiveness.
(2001/C 227/42)

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ 1994 L 11, p. 1). _(Language of the case: to be determined in accordance with_
_Article 131(2) of the Rules of Procedure. Language in which the_
_application was drafted: German)_

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 April 2001 by Mystery Drinks GmbH, of Epperthausen
**Action brought on 30 April 2001 by A. Seisenbacher** (Germany), represented by Dr Thomas Jestaedt, Dr Verena von
**Gesellschaft m.b.H. against the Commission of the Euro-** Bomhard and Dr Andreas Renck, lawyers. A further party
**pean Communities** before the Board of Appeal was Karlsberg Brauerei KG Weber,
of Homburg (Germany).

**(Case T-93/01)**
The applicant claims that the Court should:

—
(2001/C 227/41) annul the decision of Third Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks
and Designs) of 12 February 2001 (R 251/2000-3);

_(Language of the case: German)_ — order the defendant to pay the costs.

An action against the Commission of the European Communities was brought before the Court of First Instance of the _Pleas in law and main arguments_
European Communities on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H., represented by Dr Johannes Stieldorf, Applicant for the Com- the applicant
Lawyer. munity trade mark:

The applicant claims that the Court should: Community trade mark the figurative mark ‘MYSTERY’ for
— applied for: goods in Classes 29 and 30 and
order the European Community to pay the applicant the ‘non-alcoholic drinks with the
sum of ECU 59 694,44 together with interest at 13 %
exception of non-alcoholic beer’
from 20 October 1998 and the costs of the case.
in Class 32.

Proprietor of the right Karlsberg Brauerei KG Weber
_Pleas in law and main arguments_ to a trade mark or sign
asserted in the opposition proceedings:
Following an invitation to tender concerning the renovation
of the European Community building in Kiev, a contract was
Right to a trade mark or the word mark ‘MIXERY’ for ‘beer
concluded between Ost-Invest und Bauprojektmanagement
GmbH. and the Commission. On account of the financial sign asserted: and drinks containing beer’ in
Class 32
situation of that company, the applicant as general contractor
was to fulfil that contract vis-à-vis the Commission.
Decision of the Oppo- dismissal of the opposition
sition Division:
After the restored building had been handed over, the applicant
requested settlement of its final account of ECU 59 694,44. Decision of the Board of cancellation of the decision of the
Following investigations the applicant discovered that payment Appeal: Opposition Division, in so far
of ECU 55 000,00 had been made to another company, a fact as the likelihood of confusion
which is, however, immaterial to the relationship between the between the opposing mark and
applicant and the defendant. The applicant brings an action goods in Class 32, namely ‘nonpursuant to Article 238 EC and demands payment of the final alcoholic drinks with the excepaccount. tion of non-alcoholic beer’,
referred to in the application was
denied, and dismissal of the
appeal as to the remainder.