CELEX: C2002/156/56
Language: en
Date: 2002-06-29 00:00:00
Title: Case T-91/02: Action brought on 28 March 2002 by Klausner Nordic Timber GmbH & Co. KG against the Commission of the European Communities

C 156/28                EN                     Official Journal of the European Communities                                      29.6.2002
The applicant further submits that Article 8 (4) of the Merger            Pleas in law and main arguments
Control regulation, which constitutes the legal basis of the
present Decision, is only applicable where a concentration has
been implemented. The applicant states, however, that the                 The Communuity Trade          SECURECLIENT
concentration in this case has not been implemented in any
                                                                          Mark concerned:
way.
                                                                          Product or service:           ‘Computer software to protect
Thirdly, the applicant argues that the modalities for the                                               systems       from    unauthorised
divestiture constitute an infringement of Community law.                                                access’, in International Class 9.
According to the applicant, these modalities are dispro-
portionate and exceed the Commission’s competences under
                                                                          Challenged        Decision    Refusal of registration by the
Article 8(4) of the Merger Control Regulation.
                                                                          before the Board of           Examiner.
                                                                          Appeal:
The applicant finally claims that the Commission has failed to
respect the applicant’s procedural rights, in that the Com-               Grounds submitted:            Infringement of Article 7(1)(b)
mission did not respect the applicant’s right to be heard and                                           and (c) of Regulation No 40/94.
relied on information not provided to the applicant.
(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
    the control of concentrations between undertakings (OJ L 395 of
    30.12.1989 p. 1; text republished in OJ L 257 of 21.9.1990,
    p. 13).
                                                                          Action brought on 28 March 2002 by Klausner Nordic
                                                                          Timber GmbH & Co. KG against the Commission of the
                                                                                              European Communities
Action brought on 20 March 2002 by Check Point
Software Limited against the Office for Harmonisation in                                           (Case T-91/02)
                       the Internal Market
                                                                                                  (2002/C 156/56)
                          (Case T-89/02)
                         (2002/C 156/55)                                                    (Language of the case: German)
                    (Language of the case: English)
                                                                          An action against the Commission of the European Communi-
An action against the Office for Harmonisation in the Internal            ties was brought before the Court of First Instance of the
Market was brought before the Court of First Instance of the              European Communities on 28 March 2002 by Klausner Nordic
European Communities on 20 March 2002 by Check Point                      Timber GmbH & Co. KG, Wismar (Germany), represented by
Software Limited, represented by Mr Graham Farrington of                  D.O. Reich, lawyer, with an address for service in Luxembourg.
Farrington & Co Solicitors, Reading (United Kingdom).
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the Decision of the defendant’s First Board of
                                                                          —     annul the Commission’s decision of 15 January 2002 on
      Appeal of 7 January 2002; and
                                                                                State aid granted by Germany to Klausner Nordic Timber
                                                                                GmbH & Co. KG;
—     order the defendant to remit the application to its
      Examination Division for re-examination of Community
      Trade Mark no. 1744168 (SECURECLIENT).                              —     order the defendant to pay the costs.
 ---pagebreak--- 29.6.2002              EN                     Official Journal of the European Communities                                      C 156/29
Pleas in law and main arguments                                          Action brought on 27 March 2002 by Hugo Boss AG
                                                                         against the Office for Harmonisation in the Internal
                                                                                                     Market
                                                                                                  (Case T-94/02)
The applicant manages, as general partner, the business of the
company Klausner Nordic Timber GmbH which was founded
in 1997 and built a sawmill in Wismar in 1998. By the                                            (2002/C 156/57)
contested decision, the Commission declared the State aid
which the Federal Republic of Germany granted to the                                       (Language of the case: English)
applicant in relation to the construction and expansion of the
sawmill to be incompatible with the common market.
                                                                         An action against the Office for Harmonisation in the Internal
                                                                         Market was brought before the Court of First Instance of the
                                                                         European Communities on 27 March 2002 by Hugo Boss AG,
The applicant claims, first, that the guarantee in excess of             represented by Mr Emmanuel Baud of Latham & Watkins,
EUR 15,21 million with an aid component of 0,5 % must be                 Paris (France). A further party to the proceedings before the
regarded as ‘de minimis’ aid, thus precluding a Commission               Board of Appeal was Delta Protipos Biomichania Galaktos S.A.
decision ordering the recovery of that aid. The Commission
therefore wrongly applied Article 87 EC by failing to comply             The applicant claims that the Court should:
with Commission Regulation (EC) No 69/2001 (1) and/or the
notice on the de minimis rule for State aid.                             —     annul the contested Decision rendered by the Fourth
                                                                               Board of Appeal in its ruling no. R0053/2001-4 on
                                                                               12 December 2001;
                                                                         —     order that the BOSS Community Trade Mark application
The applicant further submits that the Commission misapplied                   nr 331462 for ice cream be rejected;
Articles 87 and 88 EC and the German Investment Allowance
Law. The Investment Allowance Law of 1999 provides for the               —     order the OHIM to pay the costs.
grant of a tax investment allowance for the acquisition and
manufacture of capital equipment and buildings by businesses
located in the former East Germany and was approved in its
entirety by the Commission. The requirements of the Law are              Pleas in law and main arguments
fulfilled, so that the investment allowance in favour of the
applicant was lawful. The Commission’s decision that the grant           Applicant for the Com-       Delta Protipos         Biomichania
of an investment allowance to the applicant was permissible              munity trade mark:           Galaktos S.A.
only as to 10 % is therefore unlawful.
                                                                         The Community trade          The word mark ‘BOSS’ for certain
                                                                         mark concerned:              goods in classes 29, 30, 31, 32
                                                                                                      and 33
Moreover, the applicant claims that the decision constitutes an          Proprietor of the right to   Hugo Boss AG
infringement of the prohibition venire contra factum proprium            the trade mark or sign
and the Community principle of the protection of legitimate              asserted by way of oppo-
expectations. Furthermore, the Commission unlawfully failed              sition in the opposition
to consider the actual aid intensity amount and infringed                proceedings:
Council Regulation (EC) No 659/1999 and Article 253 EC (2).
Finally, the Commission infringed Articles 87, 88 and 253 EC             Trade mark or sign           The German registration of the
by way of its formulaic and inaccurate consideration of the              asserted by way of oppo-     word mark ‘BOSS’ for certain
company Klausner Nordic Timber as a large-scale company.                 sition in the opposition     goods in classes 3, 9, 14, 18,
                                                                         proceedings:                 24 and 25 and the following
                                                                                                      international registration of this
                                                                                                      mark as well as the international
                                                                                                      registration of the word mark
                                                                                                      ‘BOSS’ for certain goods in class-
(1) Commission Regulation (EC) No 69/2001 of 12 January 2001 on
    the application of Articles 87 and 88 of the EC Treaty to de
                                                                                                      es 29, 30, 31, 32 and 33 and the
    minimis aid (OJ 2001 L 10, p. 30).                                                                international registration for these
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying                                       same goods of the word mark
    down detailed rules for the application of Article 93 of the EC                                   ‘BOSS HUGO BOSS’.
    Treaty (OJ 1999 L 83, p. 1).
                                                                         Decision of the Oppo-        Rejection of the opposition.
                                                                         sition Division:
                                                                         Decision of the Board of     Dismissal of the appeal intro-
                                                                         Appeal:                      duced by Hugo Boss AG.