CELEX: C2002/169/75
Language: en
Date: 2002-07-13 00:00:00
Title: Case T-156/02: Action brought on 15 May 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 169/42              EN                      Official Journal of the European Communities                                     13.7.2002
Pleas in law and main arguments                                          The applicant claims that the Court should:
                                                                         —     annul the Commission’s decision dated 22 January 2001;
Applicant for the Com-       The applicant
munity trade mark:
                                                                         —     order the Commission to compensate the applicants for
                                                                               their loss of earnings and other benefits caused by the
The Community trade          Verbal mark ‘BIO-CANISAN’ —
                                                                               breaches of Community law;
mark concerned:              Application No 353 896, relating
                             to goods in classes 5 and 31
                             (veterinary preparations and food-          —     order the Commission to pay the applicants’ costs.
                             stuffs for animals)
Proprietor of the right to   VETO-Centre                                 Pleas in law and main arguments
the trade mark or sign
asserted by way of oppo-
sition in the opposition                                                 The applicants all worked in the JET Project as employees or
proceedings:                                                             contractors to UK registered companies. According to the
                                                                         applicants, however, they should have been recruited by the
Trade mark or sign           French trade marks No 1582968               Commission as temporary agents since they were part of the
asserted by way of oppo-     ‘biocanina ’(word and device),              JET Project Team.
sition in the opposition     relating to goods in classes 5 and
proceedings:                 31, and No 1350892 ‘BIOCANI-
                             NA’), relating to goods in class 5          The applicants claim that the failure of the Commission to
                                                                         recruit the applicants as temporary agents was contrary the
Decision of the Oppo-        Refusal of the application                  JET statutes and constitutes an act ultra vires. According to the
sition Division:                                                         applicants, the JET statutes did not provide for the possibility
                                                                         of engaging staff who were working in the JET Project Team
Decision of the Board of     Dismissal of the appeal                     through external contractors.
Appeal:
Grounds of claim:            Infringement of Article 43(2),              Furthermore, the applicants claim that the Commission dis-
                             third sentence, and Article 8(1)(b)         criminated against them since this resulted in the applicants
                             of Regulation (EC) No 40/94.                being treated in a less favourable manner then those employed
                                                                         by the Commission who were fulfilling substantially similar
                                                                         roles in the JET Project.
Action brought on 7 May 2002 by Richard J. Eagle, John
G. Fanthome, Martin Gardener, Robert C. Walton, David                    Action brought on 15 May 2002 by Sunrider Corporation
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,                against the Office for Harmonisation in the Internal
Robert Felton, Carol Brickley, TF Atkins, Michael George                               Market (Trade Marks and Designs)
Grant and Edward Junger against the Commission of the
                   European Communities                                                           (Case T-156/02)
                        (Case T-144/02)                                                           (2002/C 169/75)
                        (2002/C 169/74)                                  (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)
                  (Language of the case: English)
                                                                         An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                Market (Trade Marks and Designs) was brought before the
ties was brought before the Court of First Instance of the               Court of First Instance of the European Communities on
European Communities on 7 May 2002 by Richard J. Eagle,                  15 May 2002 by Sunrider Corporation, Torrance (USA),
John G. Fanthome, Martin Gardener, Robert C. Walton, David               represented by A. Kockläuner, lawyer.
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,
Robert Felton, Carol Brickley, TF Atkins, Michael George Grant
and Edward Junger, represented by Mr Daniel Beard of                     Frieslands Brands B.V., Leeuwarden (the Netherlands) was an
Monckton Chambers, London (United Kingdom).                              additional party to the proceedings before the Board of Appeal.
 ---pagebreak--- 13.7.2002             EN                     Official Journal of the European Communities                                   C 169/43
The applicant claims that the Court should:                                    Removal from the register of Case T-203/00 (1)
—     partially annul Decision R 34/2000-1 of the First Board                                   (2002/C 169/76)
      of Appeal of 21 February 2002 to the extent that the
      applicant was ordered to bear half of the opposition fees                            (Language of the case: Dutch)
      as well as its owns costs in the opposition and appeal
      proceedings;
—     order the Office to pay the costs.                                By order of 25 February 2002 the President of the Third
                                                                        Chamber of the Court of First Instance of the European
                                                                        Communities ordered the removal from the register of Case
                                                                        T-203/00: Beemsterboer Coldstore Services B.V. v Commission
Pleas in law and main arguments                                         of the European Communities.
The applicant filed an application for registration of the word         (1) OJ C 302 of 21.10.2000.
mark ‘METABALANCE 44’ in respect of goods in Classes 5
and 29 at the Office for Harmonisation in the Internal Market
(application no 155747). Frieslands Brands B.V. opposed that
application. The opposition was based on various national and
international marks including, inter alia, ‘BALANCE’, ‘BALANS’
and ‘FRIESISCHE FLAGGE BALANCE’ in respect of, inter alia,                     Removal from the register of Case T-309/00 (1)
goods in Classes 5 and 29.
                                                                                                (2002/C 169/77)
As a result of a private settlement with the opponent, the
applicant limited the category of goods by removing some of                                (Language of the case: French)
the goods claimed in Class 29. The opponent later withdrew
its opposition but sought a decision on costs.
                                                                        By order of 17 April 2002 the President of the First Chamber
The Opposition Division decided that the applicant should               of the Court of First Instance of the European Communities
bear the costs of the opposition procedure. The Board of                ordered the removal from the register of Case T-309/00: S.A.
Appeal set this decision aside and ordered each of the parties          Cimenteries CBR v Commission of the European Communities.
to pay its own costs in respect of the opposition and appeal
proceedings.                                                            (1) OJ C 335 of 25.11.2000.
The applicant is appealing against the decision of the Board of
Appeal and claims that the more specific Article 81(4) of
Council Regulation (EC) No 40/94 (1) , not Article 81(3), is
applicable in the present case. The defendant thus failed to
take into account the fundamental assessment criteria and to                   Removal from the register of Case T-14/02 (1)
observe the principle of proportionality.
                                                                                                (2002/C 169/78)
Moreover, in the applicant’s opinion, the defendant also
wrongly applied the assessment criteria in Article 81(3) in                               (Language of the case: English)
conjunction with Article 81(2) of Council Regulation (EC)
No 40/94. In the applicant’s view, that provision requires
that a decision on costs should take into account general               By order of 9 April 2002 the President of the Fifth Chamber
considerations of equity and fairness.                                  of the Court of First Instance of the European Communities
                                                                        ordered the removal from the register of Case T-14/02:
                                                                        Agrofair Benelux BV and Others v Commission of the
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         European Communities.
    Community trade mark (OJ 1994 L 11, p. 1).
                                                                        (1) OJ C 109 of 4.5.2002.