CELEX: C2003/083/54
Language: en
Date: 2003-04-05 00:00:00
Title: Case T-37/03: Action brought on 4 February 2003 by Open Mobile Alliance Ltd. against the Office for Harmonization in the Internal Market

C 83/24               EN                          Official Journal of the European Union                                         5.4.2003
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the Commission’s decision rejecting the applicant’s           —     annul the decision of the Second Board of Appeal of
      candidature and refusing to admit him to the written                      OHIM of 18 November 2002 in file R 803/2001-2;
      procedure in open competition EUR/A/166/01, as noti-
      fied to him by decision of the appointing authority of              —     uphold, therefore, the applicant’s opposition to regis-
      8 April 2002;                                                             tration of the trade mark ‘CARPO’, and
—     in the alternative, order compensation for non-material             —     order the defendant to pay the costs.
      damage provisionally estimated at EUR 2 500;
—     order the defendant to pay the costs.
                                                                          Pleas in law and main arguments
                                                                          Applicant for the Com-        Basf Aktiengegesellschaft
Pleas in law and main arguments                                           munity trade mark:
                                                                          The Community trade           Word mark ‘CARPO’ for products
The applicant in the present case challenges the decision                 mark concerned:               in class 5 (fungicides, herbicides,
refusing to allow him to take part in the tests in competition                                          insecticides and pesticides).
EUR/A/166/01, held for the purpose of constituting a reserve
for recruitment of A7/A6 administrators in the area of                    Proprietor of the right to    Applicant.
auditing, on the ground that the qualifications and diplomas              the trade mark or sign
produced by the applicant did not satisfy the conditions laid             asserted by way of oppo-
down in point III.B.2 of the notice of competition. The                   sition in the opposition
Selection Board considered that the applicant’s qualifications of         proceedings:
‘Ragioniere e Perito Commerciale’ and ‘Revisore Commerciale’
could not be regarded as equivalent to the qualification of               Trade mark or sign            Spanish word mark ‘HARPO Z’
‘Dottore Commercialista’.                                                 asserted by way of oppo-      for products in Class 5 (prep-
                                                                          sition in the opposition      arations for destroying vermin,
                                                                          proceedings:                  fungicides, herbicides).
In support of his claims, the applicant alleges failure to comply
with of the notice of competition and infringement of the duty            Decision of the Oppo-         Opposition rejected.
to state reasons, and alleges that there was in the circumstances         sition Division:
of the case a manifest error of assessment. Specifically, he
argues that the Selection Board erred in its assessment of his            Decision of the Board of      Action dismissed.
qualifications, diplomas, professional activity and training              Appeal:
periods in auditing which in fact enable him to claim a
professional qualification of equivalent level.                           Grounds of claim:             Misapplication of Article 8(1)(b)
                                                                                                        of Regulation (EC) No 40/94 (like-
                                                                                                        lihood of confusion)
Action brought on 31 January 2003 by Aventis Cropscien-
ce S.A. against Office for the Harmonisation of the                       Action brought on 4 February 2003 by Open Mobile
     Internal Market (trade marks and designs) (OHIM)
                                                                          Alliance Ltd. against the Office for Harmonization in the
                                                                                                   Internal Market
                         (Case T-35/03)
                                                                                                    (Case T-37/03)
                         (2003/C 83/53)
                                                                                                    (2003/C 83/54)
                  (Language of the case: Spanish)
                                                                                             (Language of the case: English)
An action against the Office for Harmonisation in the Internal
Market (trade marks and designs (OHIM) was brought before                 An action against the Office for Harmonization in the Internal
the Court of First Instance of the European Communities on                Market was brought before the Court of First Instance of the
31 January 2003 by Aventis Cropscience S.A., the registered               European Communities on 4 February 2003 by Open Mobile
office of which is in Lyon (France), represented by Enrique               Alliance Ltd., Reading, United Kingdom, represented by Ms
Armijo Chávarri.                                                          Alexandra Dellmeier, Attorney at Law.
 ---pagebreak--- 5.4.2003               EN                        Official Journal of the European Union                                           C 83/25
The applicant claims that the Court should:                              The applicant furthermore invokes a violation of Rule 52(2) of
                                                                         Regulation 2868/95 ( 1) and an infringement of the right to
—     cancel the decision of the Third Board of Appeal of                good administration and the right to an effective remedy and
      20 November 2002;                                                  a fair trial as incorporated in articles 41 and 47 of the Charter
                                                                         of Fundamental Rights. The applicant states that no written
                                                                         communication was attached as required by Rule 52(2).
—     reassign the application No 1131739 for the figurative
      mark ‘W@P’ to the original filing date of 8 April 1999;
                                                                         The applicant finally submits that the defendant made a
—     as an auxiliary request it is asked for that the application       statement and not a decision so that the time-limit of two
      No 1131739, the figurative mark ‘W@P’, be reassigned               months indicated in Rule 52(2) of Regulation 2868/95 is not
      the application date of 13 October 1999, the date given            applicable.
      to the application for the word mark ‘WAP FORUM’ with
      the No 1131705 which was also filed for on 8 April
      1999;
                                                                         (1 ) Commission Regulation (EC) No 2868/95 of 13 December
                                                                              1995 implementing Council Regulation (EC) No 40/94 on the
—     as an auxiliary request it is asked for that the application            Community trade mark (OJ L 303, p. 1).
      No 1131739, the figurative mark ‘W@P’, be reassigned
      the application date of 21 December 1999;
—     as an auxiliary request it is asked for reinstatement
      according to article 78 of Council Regulation 40/94;
Pleas in law and main arguments                                          Action brought on 4 February 2003 by Merck Sharp &
                                                                         Dohme Limited and 19 other applicants against the
                                                                         Commission of the European Communities and the Euro-
                                                                         pean Agency for the Evaluation of Medicinal Products
The applicant applied on 8 April 1999 for the registration of
                                                                                                      (‘EMEA’)
the figurative mark ‘W@P’ for goods and services in classes 35,
41 and 42 (application No 1131739). The then representatives
of the applicant requested that the filing fee be deducted from                                    (Case T-41/03)
their deposit account.
                                                                                                   (2003/C 83/55)
The defendant informed the applicant that the filing fee had to
be paid within a time-limit of one month. Later, the defendant
informed the applicant that since the application fee had not                                (Language of the case: English)
been paid, the application would have, as its filing date,
the date on which all flaws had been remedied. The then
representatives of the applicant requested again that the fee be
deducted from their deposit account.
                                                                         An action against the Commission of the European Communi-
                                                                         ties and the European Agency for the Evaluation of Medicinal
                                                                         Products (‘EMEA’) was brought before the Court of First
The defendant informed the applicant on 5 September 2000                 Instance of the European Communities on 4 February 2003 by
that the application would have 17 March 2000 as its filing              Merck Sharp & Dohme Limited, Hoddeston, United Kingdom,
date because this was the date actual payment by cheque was              Merck Sharp & Dohme BV, Haarlem, Netherlands, Laboratoires
received. The applicant was furthermore informed that the                Merck Sharp & Dohme-Chibret, Paris, France, MSD Sharp &
deposit account did not have sufficient funds to debit the fee.          Dohme GmbH, Haar, Germany, Merck Sharp & Dohme (Italia)
                                                                         SpA., Rome, Italy, Merck Sharp & Dohme, LDA. Paço de
                                                                         Arcos, Portugal, Merck Sharp & Dohme de Espana S.A.,
The applicant contested this decision before the board of                Madrid, Spain, Merck Sharp & Dohme Ges.m.b.H., Wien,
appeal on 23 January 2001. The Board of Appeal decided that              Austria, Merck & Co. Inc., Whitehouse Station, USA, Dieck-
the appeal was out of time and declared it inadmissible.                 mann Arzneimittel GmbH, Haar, Germany, Neopharmed SpA,
                                                                         Rome, Italy, Istituto Gentili SpA., Pisa, Italy, Laboratórios
                                                                         Químico-Farmacêuticos Chibret, LDA., Paço de Arcos, Portu-
In support of its present application, the applicant submits             gal, Laboratoires Sanofi, Synthelabo France, Paris, France,
that the defendant has breached an obligation it has as a public         Boehringer Ingelheim Pharma GmbH & Co.KG, Ingelheim,
authority to keep track of its bookkeeping and an infringement           Germany, VIANEX S.A., Nea Erythrea, Greece, Sigma-Tau
of Article 41 of the Charter of Fundamental Rights, namely               Industrie Farmaceutiche Riunite SpA., Rome, Italy, Mediola-
the right to good administration. According to the applicant,            num SpA., Milano, Italy, BIOHORM S.A. (Groupo Uriach),
the defendant has the responsibility to notify within a reason-          Barcelona, Spain, and LACER S.A., Barcelona, Spain, represent-
able period of time any inconsistencies.                                 ed by Dr Georg M. Berrisch and Mr Peter Bogaert, Lawyers.