Source: EURLEX
Language: en
Format: md

28.9.2002 EN Official Journal of the European Communities C 233/27

A further party to the proceedings before the Board of Appeal
was Juan Espadafor Caba, Granada, Spain.

The applicant claims that the Court should:

—
annul the Decision of the First Board of Appeal of the
defendant dated 8 April 2002 in case R 1046/2000-1;

—
order the Office to bear the costs of the proceedings.

_Pleas in law and main arguments_

Applicant for the Com- The applicant
munity trade mark:

The Community trade The word mark ‘VITAFRUIT’ for
mark concerned: certain goods in classes 5, 29 and
32 (a.o. beers, mineral and aerated
waters and other non-alcoholic
drinks, fruit and vegetable drinks,
fruitjuices; syrups and other preparations for making beverages;
herbal and vitamin beverages)

Proprietor of the right to Juan Espadafor Caba
the trade mark or sign
asserted by way of opposition in the opposition
proceedings:

Trade mark or sign The national mark ‘VITAFRUT’
asserted by way of oppo- for goods in classes 30 and 32
sition in the opposition (a.o. non-alcoholic and non-theraproceedings: peutic carbonic drinks, fruit and
vegetable juices without fermentation, lemonades, orangeades,
cold beverages, soda water)

Decision of the Oppo- Upheld opposition insofar as it
sition Division: was based on the goods ‘fruit and
vegetable juices without fermentation, lemonades, orangeades’
and insofar as it was directed
against the goods ‘mineral and
aerated waters and other nonalcoholic drinks, fruit and vegetable drinks, fruit juices; syrups
and other preparations for making beverages; herbal and vitamin
beverages’.

Decision of the Board of Dismissal of the appeal by the
Appeal: applicant.

Grounds of claim: — Infringement of Article 43 of
Regulation 40/94( [1] ), since
there was no satisfactory
proof of the genuine use of
the opposing trademark.

—
Infringement of Article 8 (1)
b of Regulation 40/94 since
there is no danger of confusion with regard to certain
goods.

( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ L 11, p. 1).

**Action brought on 10 July 2002 by Commune de Cham-**
**pagne and Others against Council of the European Union**
**and Commission of the European Communities**

**(Case T-212/02)**

(2002/C 233/50)

_(Language of the case: French)_

An action against the Council of the European Union and the
Commission of the European Communities was brought
before the Court of First Instance of theEuropean Communities
on 10 July 2002 by Commune de Champagne and Others,
Canton de Vaud (Switzerland), represented by Denis Waelbroeck, lawyer.

The applicant claims that the Court should:

—
annul Article 1 of Decision 2002/309/EC, Euratom
Decision of the Council and of the Commission as
regards the Agreement on Scientific and Technological
Cooperation, of 4 April 2002 on the conclusion of seven
Agreements with the Swiss Confederation in so far as
the Council and the Commission thereby approved
Article 5(8) of Title II of Annex 7 to the Agreement
between the European Community and the Swiss Confederation on Trade in Agricultural Products (‘the Champagne Clause’);

C 233/28 EN Official Journal of the European Communities 28.9.2002

—
in so far as necessary, annul that decision inasmuch as
the Council and the Commission approved the other
articles of the Agreement between the European Community and the Swiss Confederation on Trade in Agricultural Products, as well as the Agreement on Mutual
Recognition in Relation to Conformity Assessment
between the European Community and the Swiss Confederation, the Agreement between the European Community and the Swiss Confederation on Certain Aspects
of Government Procurement, the Agreement on Scientific
and Technological Cooperation between the European
Community and the European Atomic Energy Community, of the one part, and the Swiss Confederation, of
the other part, the Agreement between the European
Community and the Swiss Confederation on the Carriage
of Goods and Passengers by Rail andRoad, theAgreement
between the European Community and the Swiss Confederation on Air Transport, the Agreement on the Free
Movement of Persons between the European Community
and its Member States, of the one part, and the Swiss
Confederation, of the other part;

—
declare that the European Community, as represented by
the Council and the European Commission, is liable and
order the defendants to compensate in full the applicant
wine growers for alldamage arising from the ‘Champagne
Clause’;

—
order the Council and the Commission to pay the costs.

_Pleas in law and main arguments_

The applicants are, on the one hand, owners of vineyards in
the municipality of Champagne, in the canton of Vaud in
Switzerland and, on the other, acting in defence of the interests
of those wine growers.

By the contested decision, the Council and the Commission
approved seven bilateral agreements between the Community
and the SwissConfederation; one of those agreements concerns
agricultural trade. One of the annexes to that agreement
includes a provision prohibiting use of the name ‘Champagne’
for wine originating in the canton of Vaud.

In support of their arguments, the applicants allege, first,
breach of general principles of law including right to their
identity, to property and to the freedom to pursue professional
activities. The word ‘Champagne’ is also protected in Swiss
law, where it is an appellation communale d’origine contrôlée
(registered municipal designation of origin). Moreover, the

name ‘Champagne’ has been used in the production of wine in
the area for many years and is thus the industrial and
commercial property of the applicants.

Furthermore, a total ban on the use by the applicants of
the name ‘Champagne’ does not observe the principle of
proportionality. The applicants point out that the wine they
produce is a non-sparkling wine which does not compete
with French champagne. There is therefore no likelihood of
confusion. In addition, there are less restrictive ways in which
to achievethe same objective, such as by indicating the country
of origin on the label.

**Action brought on 12 July 2002 by SNF S.A. against the**
**Commission of the European Communities**

**(Case T-213/02)**

(2002/C 233/51)

_(Language of the case: English)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 12 July 2002 by SNF S.A.,
represented by Koen Van Maldegem and Claudio Mereu at
McKenna Long & Aldridge LLP in Brussels, Belgium

The applicant claims that the Court should:

—
order the partial annulment of the Twenty-Sixth Commission Directive 2002/34/EC of 15 April 2002 adapting
to technical progress Annexes II, III and VII to Council
Directive 76/768/EEC on the approximation of the laws
of the Member States relating to cosmetic products ( [1] ), so
as to remove polyacrylamides from the measure;

—
order the Commission to pay all costs and expenses in
these proceedings.

_Pleas in law and main arguments_

The applicant seeks the partial annulment of the abovementioned Directive due to the fact that the Commission has
placed restrictions on the use of the applicant’s products,
polyacrylamides, as ingredients in cosmetic products. The