CELEX: C2003/135/60
Language: en
Date: 2003-06-07 00:00:00
Title: Case T-126/03: Action brought on 14 April 2003 by Reckitt Benckiser (España), S.L. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

7.6.2003               EN                          Official Journal of the European Union                                         C 135/37
equality of treatment as regards the use of English during the             considerations are mistaken, there would be no serious
selection procedure, in addition to other alleged defects in the           social difficulties if British Energy became insolvent, and the
same procedure. The applicant also argues that insufficient                contested Decision is, therefore, in breach of paragraph 23 (c)
reasons were stated for the contested decision.                            of the Guidelines. The applicant also claims that the aid in
                                                                           question is not restricted to the amount needed to keep British
                                                                           Energy in business, because if British Energy were placed into
                                                                           administration, as provided for by English insolvency law, the
                                                                           cost of keeping it in business might be smaller. For this reason
                                                                           the applicant considers that the contested Decision is also
                                                                           contrary to paragraph 23(e) of the Guidelines. The applicant
                                                                           further claims that the contested Decision violated para-
                                                                           graph 23 (a) of the Guidelines, by failing to take into account
Action brought on 14 April 2003 by AES Drax Power                          that the contested aid takes the form of cash placed on deposit
Limited against the Commission of the European Com-                        by the government. According to the applicant these deposits
                              munities                                     remove the market risk of dealing with British Energy and are
                                                                           therefore not identical to loans or state guarantees of loans
                                                                           provided for in paragraph 23 (a) of the Guidelines. Finally, the
                          (Case T-124/03)                                  applicant contends that the defendant exceeded the limits
                                                                           placed upon the exercise of its discretion by the EC Treaty and
                                                                           the general principles of EC law in failing to take account of
                         (2003/C 135/59)
                                                                           the impact of the contested aid on the competitors of British
                                                                           Energy.
                   (Language of the case: English)
                                                                           (1 ) OJ 1999 No C 288 p. 2.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 April 2003 by AES Drax Power
Limited, Selby, United Kingdom, represented by K. P. E. Lasok
QC and Ms. E. Gibson-Bolton, Solicitor.
The applicant claims that the Court should:
                                                                           Action brought on 14 April 2003 by Reckitt Benckiser
—     Order any measures of enquiry necessary to resolve the               (España), S.L. against the Office for Harmonisation in the
      issues of fact in this case                                               Internal Market (Trade Marks and Designs) (OHIM)
—     Annul the contested decision of 27 November 2002
      authorising State Aid NN101/02 to British Energy plc.                                         (Case T-126/03)
—     order the defendant to pay the applicant’s costs
                                                                                                    (2003/C 135/60)
                                                                           (Language of the case to be determined pursuant to Article 131(2)
Pleas in law and main arguments                                            of the Rules of Procedure — language in which the application was
                                                                                                    submitted: English)
In September 2002 the United Kingdom Government awarded
a package of rescue aid to British Energy plc., one of the main
producers of electricity in the United Kingdom and a nuclear
stations operator. By the contested Decision the defendant                 An action against the Office for Harmonisation in the Internal
decided that this state aid was compatible with the EC Treaty.             Market (Trade Marks and Designs) (OHIM) was brought before
The applicant, a competitor of British Energy, seeks the                   the Court of First Instance of the European Communities on
annulment of that Decision, contending that the defendant                  14 April 2003 by Reckitt Benkiser (España), S.L., Barcelona,
breached its own Guidelines on State Aid for Rescuing and                  Spain represented by Ms Monica Esteve Sanz, lawyer,
Restructuring firms in difficulty ( 1). The applicant disputes the
defendant’s findings that in the absence of the aid in question
British Energy would be insolvent and have to cease operating
and that if it did so there would be serious consequences both             ALADIN Gesellschaft für innovative mikrobiologische Systeme
for nuclear safety and for the security of power supply in                 GmbH was also a party to the proceedings before the Board of
the United Kingdom. According to the applicant all these                   Appeal.
 ---pagebreak--- C 135/38              EN                        Official Journal of the European Union                                           7.6.2003
The applicant claims that the Court should:                             Mark or sign cited in          National mark ‘ALADDIN’ for cer-
                                                                        opposition:                    tain goods (‘polish for metals’) in
                                                                                                       Class 3
—     Declare that the decision of the First Board of Appeals of
      31 January 2003 rendered in case 389/2002-1, has                  Decision of the Oppo-          Opposition rejected.
      infringed Article 4, paragraphs 2 and 3 and/or article 8          sition Division:
      paragraph 1, letter b) of Regulation 40/94 (1);
                                                                        Decision of the Board of       Opponent’s appeal dismissed.
                                                                        Appeal:
—     Consequently, altering this decision, declare the dismissal
      of registration of community trade mark application               Pleas in law:                  Misapplication of Article 43 para-
      no. 397.323 ALADIN (word), or — eventually — order
                                                                                                       graphs 2 and 3 and Article 8
      the devolution of the case to the First Board of Appeal;                                         paragraph 1 b) of Regulation 40/
                                                                                                       94. The applicant challenges the
                                                                                                       Board of Appeal’s ruling that the
—     Order the defendant and if the case might be, the
                                                                                                       applicant’s trade mark, cited in
      intervener to pay all the costs of these proceedings and
      the costs of the opposition and appeal incurred within                                           opposition, had only been used
                                                                                                       for one particular category of
      the OHIM.
                                                                                                       goods (‘cotton impregnated with
                                                                                                       a metal polishing agent for house-
                                                                                                       hold use’) and that, given that
                                                                                                       use, there was no likelihood of
                                                                                                       confusion between the two
                                                                                                       marks. According to the applicant
Pleas in law and main arguments
                                                                                                       this is not a case where the earlier
                                                                                                       mark has been used in relation to
                                                                                                       only part of the goods for which it
Applicant for Com-             ALADIN Gesellschaft für innova-                                         is registered. The applicant asserts
munity trade mark:             tive mikrobiologische Systeme                                           that the earlier mark had been
                               GmbH.                                                                   registered for ‘polish for metals’
                                                                                                       and that ‘impregnated cotton with
                                                                                                       a polishing agent’ is, in fact, ‘pol-
Community trade mark           Word mark ‘ALADIN’, for certain                                         ish for metals’, meaning that the
concerned:                     goods in classes 1, 3, 35, 37                                           earlier mark had been used for all
                               and 42 (application No 397323)                                          the products for which it was
                                                                                                       registered.
Proprietor of mark or          RECKITT BENCKISER (ESPAÑA),
sign cited in the oppo-        S.L.                                     (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
sition proceedings:                                                          Community trade mark (OJ 11, p. 1).