CELEX: C2003/171/66
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-170/03: Action brought on 14 May 2003 by British American Tobacco (Investments) Limited against the Commission of the European Communities

19.7.2003             EN                          Official Journal of the European Union                                        C 171/39
Pleas in law and main arguments                                           The applicant claims that the Court should:
Applicant for Com-           Sissi Rossi S.r.l.                           —     annul the refusal of the Defendant comprising the failure
munity trade mark:                                                              to give access to certain documentation requested in the
                                                                                Applicant’s confirmatory application of 17 January 2003.
Community trade mark         The trade mark ‘SISSI ROSSI’ -
sought:                      Application No 837.906 for
                             goods in Classes 14, 18, 25 and              —     order the Defendant to pay all the Applicant’s costs
                             26                                                 pursuant to Article 87 of the Rules of Procedure of the
                                                                                Court of First Instance.
Proprietor of mark or        The applicant
sign cited in the oppo-
sition proceedings:
Mark or sign cited in        Italian trade mark No 553.016
opposition:                  and international trade mark
                             No 577.643 ‘MISS ROSSI’, for                 Pleas in law and main arguments
                             goods in Class 25 (ladies’ shoes)
Decision of the Oppo-        Opposition upheld and appli-
sition Division:             cation for registration refused              The applicant in the present case challenges the refusal of the
                                                                          defendant to grant it access to certain documents relating to
Decision of the Board of     Appeal upheld and opposition                 the classification of expanded tobacco for Customs and Excise
Appeal:                      decision dismissed                           duty purposes. Regarding this topic, it points out that it has a
                                                                          vital interest in knowing why a given product — expanded
                                                                          tobacco — is treated as smoking tobacco within the meaning
Pleas in law:                Likelihood of confusion by associ-           of Article 5(1) of Directive 95/59/EC of 27 November
                             ation and similarity between the             1995, on taxes other than turnover taxes which affect the
                             trade mark applied for and the
                                                                          consumption of manufactured tobacco (1), and thus as an
                             trade mark cited in opposition               excisable product. The applicant considers the product an
                             (Article 8(1)(b) of Regulation
                                                                          intermediary product, unsmokable without further processing,
                             No 40/94)                                    and therefore not excisable. It is stressed that there has been
                                                                          no published decision determining the issue and giving the
                                                                          reasons for the classification chosen.
                                                                          As regards two of the sets of requested documents (a complete
                                                                          set of documents of the Customs Cooperation Council on the
                                                                          Classification of expanded tobacco for customs classification
Action brought on 14 May 2003 by British American                         purposes and all the attendance lists of all meetings of the
Tobacco (Investments) Limited against the Commission                      Committee on Excise Duties, or any other relevant Committee,
                of the European Communities                               at which the definition of ‘smoking tobacco’ was debated), the
                                                                          applicant submits that the Commission infringed Article 8(1)
                                                                          and (2) of Regulation(EC) 1049/2001 (2), by not responding
                        (Case T-170/03)                                   within the regulatory time-limits thereof.
                        (2003/C 171/66)
                                                                          In relation to the full minutes of all meetings of Excise duties,
                  (Language of the case: English)                         or any other relevant committee, at which the definition of
                                                                          ‘smoking tobacco’ was debated, including the full minutes of
                                                                          discussions on other agenda points, the applicant claims that
                                                                          the contested refusal:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                —     Misapplied the principle of proportionality. In particular,
European Communities on 14 May 2003 by British American                         the Commission made no attemp to confer informally
Tobacco (Investments) Limited, London, United Kingdom,                          with the applicant with a view to finding a fair solution,
represented by Mr S. Crosby, lawyer.                                            pursuant to Article 6 of Regulation (EC) 1049/2001
 ---pagebreak--- C 171/40                EN                          Official Journal of the European Union                                      19.7.2003
—      Has not given due weight to the applicant’s interest in              Pleas in law and main arguments
       receiving the requested documentation
                                                                            Applicant for Com-           The applicant.
                                                                            munity trade mark:
Moreover, the applicant doesn’t accept the Commission’s
contention that the Member States would have to be consulted
in relation to the submissions made by them in the minutes. It              Community trade mark         Figurative mark NLCollection —
is the applicant’s position that, in accordance with Article 4(4)           sought:                      Application No 1082809 for
of Regulation (EC) 1049/2001, a consultation with a Member                                               goods in Class 25 (articles of
State shall take place only when it is not clear whether a                                               clothing, footwear and headgear).
document shall or shall not be disclosed. Furthermore, the
final decision as to whether or not a document shall be released
                                                                            Proprietor of mark or        NAULOVER SA
remains with the Commission, and this must be reasoned and                  sign cited in the oppo-
clearly justified as falling within one of the exemptions                   sition proceedings:
provided for in the access regulation.
                                                                            Mark or sign cited in        Figurative mark NL (Community
                                                                            opposition:                  trade mark No 13417 and Span-
( 1) OJ L 291 of 6.12.1995, p. 40.
                                                                                                         ish trade mark No 1329084).
( 2) Regulation (EC) No 1049/2001 of the European Parliament and
     the Council of 30 May 2001 regarding public access to European
     Parliament, Council and Commission documents (OJ L 145 of              Decision of the Oppo-        Rejection of the opposition.
     31.5.2001, p. 43).                                                     sition Division:
                                                                            Decision of the Board of     Annulment of the decision of the
                                                                            Appeal:                      Opposition Division and accept-
                                                                                                         ance of the opposition with
                                                                                                         respect to Community trade mark
                                                                                                         No 13417.
                                                                            Pleas in law:                Misapplication of Article 8(1)(b)
Action brought on 19 May 2003 by New Look Limited                                                        of Regulation (EC) No 40/94 (like-
                                                                                                         lihood of confusion).
against the Office for Harmonisation in the Internal
           Market (Trade Marks and Designs) (OHIM)
                          (Case T-171/03)
                         (2003/C 171/67)
                    (Language of the case: Spanish)                         Action brought on 19 May 2003 by Anne Geddes against
                                                                                the Office for Harmonisation in the Internal Market
                                                                                                    (Case T-173/03)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on                                          (2003/C 171/68)
19 May 2003 by New Look Limited, established in Weymouth,
Dorset (United Kingdom), represented by R. Ballester and
G. Marín, lawyers.                                                                            (Language of the case: English)
The applicant claims that the Court should:
—      annul the decision of OHIM (First Board of Appeal) of                An action against the Office for Harmonisation in the Internal
       15 April 2003 in Case No R 019/2003-1;                               Market was brought before the Court of First Instance of the
                                                                            European Communities on 19 May 2003 by Anne Geddes,
                                                                            Auckland, New Zealand, represented by Mr G. Farrington,
—      order OHIM and any intervener to pay the costs.                      Solicitor.