CELEX: C2002/202/53
Language: en
Date: 2002-08-24 00:00:00
Title: Case T-182/02: Action brought on 10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria against Office for the Harmonization in the Internal Market (trade marks and designs) (OHIM)

C 202/32                 EN                    Official Journal of the European Communities                                        24.8.2002
Pleas and main arguments                                                  Action brought on 10 June 2002 by Uni-Pharma — Kleon
                                                                          Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki
                                                                          kai Emboriki Eteria against Office for the Harmonization
                                                                           in the Internal Market (trade marks and designs) (OHIM)
In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a
                                                                                                   (Case T-182/02)
group said to comprise Erba Lautex GmbH in liquidation
and Neue Erba Lautex GmbH aid amounting in total to
EUR 7 834 million.                                                                                 (2002/C 202/53)
                                                                                             (Language of the case: French)
The applicant submits that the Commission was incorrect in its
finding that the applicant and Erba Lautex GmbH constituted a
unit or group of undertakings and that therefore the ability to           An action against the Office for Harmonization in the Internal
approve rescue and restructuring aid could only be assessed in            Market (trade marks and designs) (OHIM) was brought before
favour of the group, that the Deggendorf doctrine was to be               the Court of First Instance of the European Communities on
applied and the aid was to be claimed back from both members              10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika
of the group. The Commission’s Decision is said to be based               Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria, whose
on the erroneous finding that the applicant’s case did not                registered office is in Kato Kifissia, Attiki (Greece), represented
constitute a residual arrangement under the terms of the                  by Eleni Gioti-Manthou and Maria Bra.
exception provided for in footnote 10 of the Guidelines (1). By
not applying that exceptional provision the Commission
infringed the principle of equal treatment and provided no                The applicant claims that the Court should:
objective reason for the unequal treatment.
                                                                          —     find that there is no likelihood of confusion between the
                                                                                marks in question;
The applicant maintains that the Commission’s finding that                —     annul the contested decision of the Fourth Board of
the applicant and Erba Lautex GmbH were to be deemed to                         Appeal of 27 February 2002;
constitute a group was erroneous since the applicant is
controlled not by Erba Lautex GmbH but by the liquidator. In              —     order the Office to pay the costs of all the proceedings,
consequence of the erroneous assumptions made by the                            including lawyers’ fees incurred by the applicant.
Commission the contested decision was already unlawful and
liable to be set aside for breach of Article 87(3)(c) EC in
conjunction with the Guidelines.
                                                                          Pleas in law and main arguments
In the alternative the applicant maintains that the Commission
                                                                          Applicant for the Com-         The applicant
wrongly classified the relevant measure as aid or, in the
                                                                          munity trade mark:
alternative, assumed a level of aid intensity greater than was
the case. In addition, in finding that the decision of 1999 to            The Community trade            Word mark ‘Apotel’ in respect of
claim repayment of aid concerning Erba Lautex GmbH had                    mark concerned:                certain goods in Class 5 (anal-
not been complied with, the Commission manifestly erred in                                               gesics and antipyretics) — appli-
its findings of facts in that regard.                                                                    cation No 613554
                                                                          Proprietor of the right to     Biofarma (previously Orsem)
                                                                          the trade mark or sign
Furthermore, the applicant is claiming that the Commission
                                                                          asserted by way of oppo-
committed errors of assessment and infringed essential formal
                                                                          sition in the opposition
requirements. It infringed the duty to provide a statement of
                                                                          proceedings:
reasons and the Federal Government’s right to be heard.
Finally, the Commission misused its discretion in adopting the            Trade mark or sign             National and international word
contested decision and infringed the right to administration in           asserted by way of oppo-       mark ‘Aportex’ in respect of cer-
accordance with the rules.                                                sition in the opposition       tain goods in Class 5 (pharmaceu-
                                                                          proceedings:                   tical products for the prevention
                                                                                                         and/or treatment of the meno-
(1) Community Guidelines on State aid for rescuing and restructuring                                     pause)
    firms in difficulty (OJ 1999 C 288, p. 2).
                                                                          Decision of the Oppo-          Dismissal of entire opposition
                                                                          sition Division:
                                                                          Decision of the Board of       Annulment of the decision of the
                                                                          Appeal:                        Opposition Division
 ---pagebreak--- 24.8.2002             EN                     Official Journal of the European Communities                                       C 202/33
Grounds of claim:            —     Irregularity of the procedure        Pleas in law and main arguments
                                   in that the appeal was reas-
                                   signed to another Board of
                                   appeal and that the applicant
                                   was not informed of the              Applicant for the Com-        The applicant.
                                   change of name of the                munity trade mark:
                                   opponent.
                                                                        Community trade mark          Word mark MUNDICOR (appli-
                             —     Failure of the Board of              applied for:                  cation published in Community
                                   Appeal to provide reasons                                          Trade Mark Bulletin No 27/98,
                                   for its decision.                                                  p. 600, 14 April 1998) for goods
                                                                                                      in the 42 classes of the nomencla-
                             —     Breach of the concept of                                           ture.
                                   ‘likelihood of confusion’.
                             —     Misuse of rights by the              Owner of the mark or          González Cabello S.A.
                                   opponent in that it has not          sign relied on in the
                                   made any use of the mark             opposition proceedings:
                                   objected to.
                                                                        Mark or sign opposed:         Spanish mark MUNDICOLOR for
                                                                                                      goods in class 2 (colours, varnish-
                                                                                                      es, lacquers, preservatives against
                                                                                                      rust and against deterioration of
                                                                                                      wood; colorants; mordants; raw
                                                                                                      natural resins; metals in foil and
                                                                                                      powder form for painters, decor-
                                                                                                      ators, printers and artists).
                                                                        Decision of the oppo-         Application allowed.
                                                                        sition division:
Action brought on 11 June 2002 by El Corte Inglés, S.A.
against the Office for Harmonisation in the Internal                    Decision of the Board of      Dismissal of the appeal brought
                            Market                                      Appeal:                       by El Corte Inglés S.A.
                                                                        Pleas in law relied on:       Misapplication of Article 8(1)(b)
                       (Case T-183/02)                                                                of Regulation (EC) No 40/94 (like-
                                                                                                      lihood of confusion).
                       (2002/C 202/54)
                 (Language of the case: Spanish)
An action against the Office for Harmonisation in the Internal          Action brought on 11 June 2002 by El Corte Inglés, S.A.
Market was brought before the Court of First Instance of the            against the Office for Harmonisation in the Internal
European Communities on 11 June 2002 by El Corte Inglés,                                            Market
S.A. of Madrid, represented by Juan Luis Rivas Zurdo.
                                                                                                (Case T-184/02)
The applicant claims that the Court should:
                                                                                                (2002/C 202/55)
—    annul the decision of 22.3.02 of OHIM’s First Board of
     Appeal and the decision of 17.9.99 of OHIM’s opposition                              (Language of the case: Spanish)
     division;
—    allow registration of Community Trade Mark No 557108
     ‘MUNDICOR’ to proceed for all goods claimed in Class 2;            An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 11 June 2002 by El Corte Inglés,
—    order the opponent(s) to pay the costs.                            S.A. of Madrid, represented by Juan Luis Rivas Zurdo.