CELEX: C2003/171/52
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-122/03: Action brought on 14 April 2003 by AGA AB against the Commission of the European Communities

C 171/30             EN                         Official Journal of the European Union                                        19.7.2003
Proprietor of mark or        Pentafarma-Sociedade        Técnico        The applicant claims that the Court should:
sign cited in the oppo-      Medicinal, LDA
sition proceedings:
                                                                        —     annul the decision of the European Agency for the
                                                                              Evaluation of Medicinal Products of 4 February 2003,
Mark or sign cited in        The Portuguese word mark                         Document No EMEA/2044;
opposition:                  ‘DERMAZIL’ for goods in Class 5
                             (inter alia, pharmaceutical prep-
                                                                        —     order the defendant to pay the costs of the proceedings.
                             arations and disinfectants)
Decision of the Oppo-        Registration refused in respect of
sition Division:             several goods in Classes 3 and 5
                                                                        Pleas in law and main arguments
Decision of the Board of     Annulment of the decision of the
Appeal:                      Opposition Division in respect of
                             certain goods in Class 5. Dismissal        The applicant holds a Community marketing authorisation for
                             of the remainder of the applicant’s        the medicinal product, INOmax, whose active ingredient is
                             appeal.                                    nitrogen oxide (NO). On 25 January 2002, the competent
                                                                        authority in France granted another undertaking a national
                                                                        authorisation for a medicinal product called KINOX, whose
Pleas in law:                —     A similarity between the
                                                                        active ingredient is also nitrogen oxide. In response to that
                                   goods compared can be seen
                                                                        authorisation, the applicant lodged an application with the
                                   only in respect of goods in
                                                                        European Agency for the Evaluation of Medicinal Products
                                   Class 5.
                                                                        (EMEA) to initiate the procedure under Article 31 of Directive
                             —     The final syllables, which           2001/83/EC (1) in respect of medicinal products containing
                                   alone are relevant, are clearly      nitrogen oxide. That application was rejected in the contested
                                   different in both sound and          decision on the ground that the applicant, as holder of a
                                   appearance.                          Community marketing authorisation, is not entitled to make
                                                                        such an application.
                             —     No likelihood of confusion
                                   exists.
                                                                        The applicant raises the following pleas in law:
                                                                        —     Infringement of essential procedural requirements. The
                                                                              applicant submits that the contested decision was adopted
                                                                              by staff in the secretariat of the EMEA, who, under the
                                                                              relevant procedural provisions of Directive 2001/83/EC
                                                                              and Regulation No 2309/93/EC ( 2) were not competent
                                                                              to adopt such a decision. Instead, the decision on whether
                                                                              to reject the application should have been taken by the
                                                                              Committee for Proprietary Medicinal Products (CPMP) of
Action brought on 14 April 2003 by AGA AB against the                         the EMEA.
        Commission of the European Communities
                                                                        —     Failure to observe the principle of the right to be heard,
                                                                              in so far as the applicant was not given any opportunity
                       (Case T-122/03)                                        to express its views on the matter before the decision to
                                                                              reject the application on procedural grounds was adopted.
                       (2003/C 171/52)
                                                                        —     Incorrect interpretation of Article 31 of Directive 2001/
                                                                              83/EC. The applicant submits that, contrary to the
                                                                              view of the EMEA, holders of Community marketing
                 (Language of the case: German)                               authorisations for medicinal products for human use are
                                                                              also entitled to lodge applications on the basis of that
                                                                              article.
An action against the Commission of the European Communi-               (1 ) OJ L 311, 28.11.2001, p. 67.
ties was brought before the Court of First Instance of the              (2 ) OJ L 214, 24.8.1993, p. 1.
European Communities on 14 April 2003 by AGA AB,
whose registered office is in Lidingö (Sweden), represented by
B. Sträter and M. Ambrosius, lawyers.