CELEX: C2003/158/22
Language: en
Date: 2003-07-05 00:00:00
Title: Case C-192/03 P: Appeal brought on 12 May 2003 by Alcon Inc., formerly Alcon Universal Ltd, against the judgment delivered on 5 March 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-237/01 between Alcon Inc., formerly Alcon Universal Ltd and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

5.7.2003                 EN                          Official Journal of the European Union                                           C 158/13
2.     If the answer to question 1 is in the affirmative, is it              was brought before the Court of Justice of the European
       contrary to Directive 76/207 for an employer to offset                Communities on 12 May 2003 by Alcon Inc., formerly
       against an employee’s total entitlement to benefit under              Alcon Universal Ltd, established in Hünenberg (Switzerland),
       an occupational sick-leave scheme, a period of absence                represented by S. Clark, Solicitor, and C. Morcom QC, with an
       from work due to incapacity caused by a pregnancy                     address for service in Luxembourg.
       related illness arising during pregnancy?
3.     If the answer to question 1 is in the affirmative, does
       Directive 76/207 require an employer to have in place                 The Appellant claims that the Court should:
       special arrangements to cover absence from work due to
       incapacity caused by pregnancy related illness arising                —     set aside the judgment of the Court of First Instance
       during pregnancy?                                                           delivered on 5 March 2003, and that the contested
                                                                                   decisions of the Cancellation Division dated 15 December
4.     Does the operation of a sick leave scheme which treats                      1999 and of the First Board of Appeal dated 13 July
       employees suffering from pregnancy related illness and                      2001 be annulled;
       pathological illness come within the scope of Article 141
       of the EC Treaty and Directive 75/117 (2) ?
                                                                             —     make an order for the payment of its costs.
5.     If the answer to question 4 is in the affirmative, is it
       contrary to Article 141 of the Treaty and Directive 75/
       117 for an employer to reduce a woman’s pay after she
       has been absent from work for a designated period where
       the absence is caused by incapacity due to a pregnancy                Pleas in law and main arguments
       related illness arising during pregnancy in circumstances
       in which a non pregnant woman or a man absent from
       work for the same period as a result of incapacity due                The appellant submits that the decision of the Court of First
       to purely pathological illness would suffer the same                  Instance of 5 March 2003 was wrong in law in a number of
       reduction?                                                            respects. In particular the Court
( 1) Council Directive 76/207/EEC of 9 February 1976 on the                  (i)   failed to consider adequately or at all the specific require-
     implementation of the principle of equal treatment for men and                ments of Article 7(1)(d) of the Community Trade Mark
     women as regards access to employment, vocational training and                Regulation as to customary use, in the current language
     promotion, and working conditions (OJ L 039, 14.2.1976, p. 40-                or in the bona fide and established practices of the trade;
     42).
( 2) Council Directive 75/117/EEC of 10 February 1975 on the
     approximation of the laws of the Member States relating to the          (ii)  wrongly proceeded upon the assumption that mere
     application of the principle of equal pay for men and women (OJ               entries in directories or other reference sources by
     L 045, 19.2.1975, p. 19-20).                                                  themselves satisfied the requirements of Article 7(1)(d);
                                                                             (iii) wrongly took into consideration material not published
                                                                                   or not shown to have been published within the European
                                                                                   Union prior to 1 April 1996 and in so doing failed to
                                                                                   address the distinction between the requirements of
                                                                                   Articles 7(1)(d) and 50(1)(b) of the Regulation, the former
Appeal brought on 12 May 2003 by Alcon Inc., formerly                              alone being material for the purposes of the application
Alcon Universal Ltd, against the judgment delivered on                             for a declaration of invalidity;
5 March 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-237/
01 (1) between Alcon Inc., formerly Alcon Universal Ltd                      (iv) failed to take into account the evidence of Alcon’s
and the Office for Harmonization in the Internal Market                            substantial policing of the trade mark BSS over a very
               (Trade Marks and Designs) (OHIM)                                    considerable period of time;
                          (Case C-192/03 P)                                  (v)   alternatively wrongly rejected the case put forward on
                                                                                   behalf of Alcon, that the mark BSS had in fact acquired
                           (2003/C 158/22)                                         distinctive character as a result of use, thus meeting the
                                                                                   requirements of Article 51(2) of the Regulation.
An appeal against the judgment delivered on 5 March 2003
                                                                             (1 ) OJ C 369, 22.12.2001, p. 13.
by the Second Chamber of the Court of First Instance of the
European Communities in case T-237/01 between Alcon Inc.,
formerly Alcon Universal Ltd and the Office for Harmonization
in the Internal Market (Trade Marks and Designs) (OHIM),