CELEX: C2003/044/74
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-383/02: Action brought on 13 December 2002 by G.D. Searle LLC against the Office for Harmonization in the Internal Market

22.2.2003              EN                         Official Journal of the European Union                                            C 44/39
Pleas in law and main arguments                                           European Communities on 13 December 2002 by G.D. Searle
                                                                          LLC, Illinois, United States of America, represented by Pro-
                                                                          fessor W. A. Hoyng, lawyer.
The applicant in the present action is the representative of
Seven Stars Pictures Italia (‘SSP’), a company with its head
office in Rome and which, on 13 August 1977, applied, in the
context of the Phare-Tacis Joint Venture Programme, for a                 A further party to the proceedings before the Board of Appeal
financial contribution towards the incorporation of an Italo-             was PHYTO-ESP S.L.
Rumanian company (a joint venture project with Phoenix
European S.r.l.). It is recorded that a contribution of
EUR 81 327, together with a further EUR 4 099 in respect of
the pre-feasibility stage, was granted, whereupon an advance              The applicant claims that the Court should:
of EUR 28 311 was paid to SSP and the corresponding
contract was signed. At the end of the first phase of ‘Facility 2’
                                                                          —     annul the decision of the First Board of Appeal of the
the remainder of the contribution was paid over.
                                                                                OHIM of 1 October 2002 (Case R 627/2001-1);
According to the applicant, the relevant staff of the Com-
mission had continuously assured the abovementioned com-                  —     order the OHIM to compensate Searle for the costs of
pany that everything was in order and that all that needed to                   these proceedings.
be done was to calculate the precise amount still owing.
However, on 30 October 2001, the Commission adopted the
contested decision, refusing the joint venture company the
contribution granted by the joint venture programme.
                                                                          Pleas in law and main arguments
In support of its claims, the applicant argues that insufficient
reasons were given and that the Commission made an error in
its evaluation of the facts.                                              Registered Community           The word mark CELEBREX
                                                                          trade mark against             (No 852 372) for certain goods in
                                                                          which a request for dec-       class 5 (a.o. pharmaceuticals in
The statement of reasons given for the contested decision is              laration on invalidity has     the nature of anti-inflammatory
too concise. Mention is made of a divergence between the                  been introduced:               analgesics)
project as approved and the joint venture ultimately set up,
but no mention is made of any actual omission or discrepancy.
                                                                          Applicant for the Com-         G.D. Searle LLC
                                                                          munity trade mark:
As regards the assertion that no documents are extant that
prove that the joint venture in question became operational,
                                                                          Applicant for the declar-      PHYTO-ESP S.L.
and the allegation that no employees were even engaged and
                                                                          ation of invalidity of the
no turnover achieved, the applicant submits that it has shown
                                                                          Community trade mark:
that the joint venture is operational, that 12 professionals have
been retained and that business has been commenced, in
particular in the field of professional training.                         Trade mark or sign of          The national word mark CEREB-
                                                                          the applicant for declar-      RESP for certain goods in class 5
                                                                          ation of invalidity:           (pharmaceutical products a.o.)
The applicant claims compensation of the damages it has
suffered as a result of the contested decision.
                                                                          Decision of the Cancel-        Declaration of invalidity of the
                                                                          lation Division:               Community trade mark CELEB-
                                                                                                         REX
                                                                          Decision of the Board of       Dismissal of the appeal by
Action brought on 13 December 2002 by G.D. Searle LLC                     Appeal:                        G.D. Searle LLC
against the Office for Harmonization in the Internal
                              Market                                      Grounds of claim:              Infringement of Article 8(1)(b) of
                                                                                                         Regulation No 40/94 (1) in that
                         (Case T-383/02)                                                                 there is no likelihood of confusion
                                                                                                         between the marks ...
                         (2003/C 44/74)
                  (Language of the case: English)                         (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 11, p. 1).
An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the