CELEX: C2003/101/66
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-380/02: Action brought on 18 December 2002 by Success-Marketing Unternehmensberatungesellschaft m.b.H. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26.4.2003                EN                           Official Journal of the European Union                                         C 101/35
annulment of Council Regulation (EC) No 881/2002 of 27 May                    1.    The application for interim relief is dismissed.
2002 imposing certain specific restrictive measures directed
against certain persons and entities associated with Usama bin                2.    The costs are reserved.
Laden, the Al-Qaida network and the Taliban, and repealing
Council Regulation (EC) No 467/2001 prohibiting the export
of certain goods and services to Afghanistan, strengthening
the flight ban and extending the freeze of funds and other
financial resources in respect of the Taliban of Afghanistan (OJ
2002 L 139, p. 9), — the Court of First Instance (Second
Chamber), composed of N.J. Forwood, President, J. Pirrung and
A.W.H. Meij, Judges; H. Jung, Registrar, made an order on                     Action brought on 18 December 2002 by Success-Market-
3 February 2003, the operative part of which is as follows:                   ing Unternehmensberatungesellschaft m.b.H. against the
                                                                              Office for Harmonisation in the Internal Market (Trade
                                                                                                      Marks and Designs)
1.     The action is dismissed as inadmissible in so far as it is directed
       against the Commission.
                                                                                                        (Case T-380/02)
2.     The applicant is ordered to pay the costs relating to this part of                               (2003/C 101/66)
       the action.
                                                                              (Language of the case: to be determined in accordance with
                                                                              Article 131(2) of the Rules of Procedure — Application drafted in
( 1) OJ C 289 of 23.11.2002.
                                                                                                             German)
                                                                              An action against the Office for Harmonisation in the Internal
                                                                              Market (Trade Marks and Designs) was brought before the
                                                                              Court of First Instance of the European Communities on
                                                                              18 December 2002 by Success-Marketing Unternehmensbera-
                                                                              tungesellschaft m.b.H., Linz (Austria), represented by G. Seck-
                                                                              lehner, Rechtsanwalt, with an address for service in Luxem-
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                  bourg. Additional party before the Board of Appeal: Chipita
                             INSTANCE                                         International S.A., Athens.
                       of 19 December 2002                                    The applicant claims that the Court should:
                                                                              —     set aside the decision of the First Board of Appeal of the
in Case T-320/02 R: Monika Esch-Leonhardt and Others v                              Office for Harmonisation in the Internal Market of
                      European Central Bank                                         2 October 2002 ( 1);
                                                                              —     order the Office to allow restitution in integrum;
   (Proceedings for interim relief — Urgency — No urgency)
                                                                              —     order the Office to pay all the costs of the proceedings,
                                                                                    including those for the procedure before the Board of
                          (2003/C 101/65)                                           Appeal.
                    (Language of the case: German)
                                                                              Pleas in law and main arguments
                                                                              The applicant applied to the Office for registration of the word
In Case T-320/02 R: Monika Esch-Leonhardt, residing in                        mark ‘PAN & CO’ for goods and services of classes 11, 30, 35,
Frankfurt-am-Main (Germany), Tillmann Frommhold, residing                     37 and 42 (Application No 634287). Chipita International
in Karben (Germany), and Emmanuel Larue, residing in                          S.A., owner of the pictorial mark ‘PAN SPEZIALITÄTEN’ for
Frankfurt-am-Main, represented by B. Karthaus, Rechtsanwalt,                  goods of class 30 (Community Mark No 382374) lodged an
with an address for service in Luxembourg, against European                   opposition to such registration.
Central Bank (Agents: T. Gilliams, G. Gruber and B. Wägen-
baur) — application for the temporary removal of a document
from the personal files of the applicants — the President of the              The Opposition Division set a time-limit for the applicant to
Court of First Instance made an order on 19 December 2002,                    submit its position on the opposition. The applicant did not
the operative part of which is as follows:                                    submit a position within that time-limit. By decision of
 ---pagebreak--- C 101/36                 EN                          Official Journal of the European Union                                         26.4.2003
22 September 1999, the Opposition Division held the oppo-                    Action brought on 3 February 2003 by Leder & Schuh
sition to be justified and dismissed the application for certain             AG against the Office for Harmonisation in the Internal
goods of class 30.                                                                    Market (Trade Marks and Designs) (OHIM)
                                                                                                       (Case T-32/03)
The applicant argued that it was only in the context of an
enquiry with the Office that it learned that opposition to the                                        (2003/C 101/67)
mark had been raised as early as 1998, and that up to that
point it had received no notification that an opposition had
been lodged.                                                                 (Language of the case: to be determined pursuant to Article 131(2)
                                                                             of the Rules of Procedure — Language in which the application was
                                                                                                     submitted: German)
In June 2000, the applicant made an application for restitutio
in integrum in accordance with Article 78 of Regulation (EC)
No 40/94, an application for inspection of the files and an                  An action against the Office for Harmonisation in the Internal
application for costs. The Opposition Division dismissed the                 Market (Trade Marks and Designs) (OHIM) was brought before
application for restitutio in integrum by decision of 25 October             the Court of First Instance of the European Communities on
2000. By the contested decision, the Board of Appeal dismissed               3 February 2003 by Leder & Schuh AG, Graz (Austria),
the applicant’s appeal.                                                      represented by W. Kellenter and A. Schaffge, lawyers.
                                                                             Schuhpark Fascies GmbH, Warendorf (Germany), was also a
                                                                             party to the proceedings before the Board of Appeal.
The applicant argues that the contested decision infringed
                                                                             The applicant claims that the Court should:
essential procedural requirements, the Treaty and Regulation
(EC) No 40/94. It argues that it was deprived of the possibility
of defending its right to a fair hearing, as it was unable to                —     annul the decision of the Third Board of Appeal of the
contact the opposing party during the ‘cooling-off’ period in                      Office for Harmonisation in the Internal Market (Trade
order to make a settlement, and it was not possible for it either                  Marks and Designs) of 27 November 2002, in the
to submit its reaction to the opposition or to lodge an appeal                     amended version of 9 December 2002, in Case R 494/
within the time-limits against the decision of the Opposition                      1999-3;
Division. Accordingly, despite using all the care required in the
circumstances, the applicant was prevented from complying                    —     order the defendant to pay the costs.
with Office’s time-limits and is therefore, it submits, entitled to
restitutio in integrum.
                                                                             Pleas in law and main arguments
The legal argument of the Board of Appeal, that an application
for restitutio in integrum is possible only within a year after              Applicant for Com-             The Applicant
the expiry of the missed time-limit, cannot be accepted. Under               munity trade mark:
that argument, the possibility of restitution is removed by a
restrictive interpretation of Article 78 of Regulation (EC)                  Community trade mark           The     word      mark       ‘JELLO
No 94/40 in the very circumstances where protection is most                  sought:                        SCHUHPARK’ for products in
needed, namely when no written document whatever was                                                        Classes 18, 25 and 28 (particu-
served.                                                                                                     larly leather and imitations of
                                                                                                            leather, products of those
                                                                                                            materials in so far as they fall
                                                                                                            within Class 18, clothing, foot-
                                                                                                            wear and toys — Application
Finally, proof of service merely in the form of a fax confir-                                               No 107367
mation which the Office may have can never be sufficient.
                                                                             Proprietor of mark or          Schuhpark Fascies GmbH
                                                                             sign cited in the oppo-
                                                                             sition proceedings:
( 1) Decision of the First Board of Appeal in Case R 26/2001-1.
                                                                             Mark or sign cited in          German word mark ‘Schuhpark’
                                                                             opposition:                    for products in Class 25 (particu-
                                                                                                            larly boots, ankle boots, slippers,
                                                                                                            shoes and sandals)