CELEX: C2001/227/42
Language: en
Date: 2001-08-11 00:00:00
Title: Case T-99/01: Action brought on 27 April 2001 by Mystery Drinks GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

11.8.2001              EN                     Official Journal of the European Communities                                      C 227/21
                               — the verbal element contained            Action brought on 27 April 2001 by Mystery Drinks
                                   in the trade mark applied for         GmbH against the Office for Harmonisation in the
                                   is not in itself subject to any                Internal Market (Trade Marks and Designs)
                                   absolute ground for refusal
                               — there is no ground for refusal                                   (Case T-99/01)
                                   on the basis of a lack of dis-
                                   tinctiveness.
                                                                                                 (2001/C 227/42)
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).                           (Language of the case: to be determined in accordance with
                                                                         Article 131(2) of the Rules of Procedure. Language in which the
                                                                                          application was drafted: 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
                                                                         27 April 2001 by Mystery Drinks GmbH, of Epperthausen
Action brought on 30 April 2001 by A. Seisenbacher                       (Germany), represented by Dr Thomas Jestaedt, Dr Verena von
Gesellschaft m.b.H. against the Commission of the Euro-                  Bomhard and Dr Andreas Renck, lawyers. A further party
                       pean Communities                                  before the Board of Appeal was Karlsberg Brauerei KG Weber,
                                                                         of Homburg (Germany).
                          (Case T-93/01)
                                                                         The applicant claims that the Court should:
                         (2001/C 227/41)                                 —     annul the decision of Third Board of Appeal of the Office
                                                                               for Harmonisation in the Internal Market (Trade Marks
                                                                               and Designs) of 12 February 2001 (R 251/2000-3);
                   (Language of the case: German)                        —     order the defendant to pay the costs.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Pleas in law and main arguments
European Communities on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H., represented by Dr Johannes Stieldorf,               Applicant for the Com-        the applicant
Lawyer.                                                                  munity trade mark:
The applicant claims that the Court should:                              Community trade mark          the figurative mark ‘MYSTERY’ for
                                                                         applied for:                  goods in Classes 29 and 30 and
—     order the European Community to pay the applicant the                                            ‘non-alcoholic drinks with the
      sum of ECU 59 694,44 together with interest at 13 %                                              exception of non-alcoholic beer’
      from 20 October 1998 and the costs of the case.                                                  in Class 32.
                                                                         Proprietor of the right       Karlsberg Brauerei KG Weber
Pleas in law and main arguments                                          to a trade mark or sign
                                                                         asserted in the oppo-
Following an invitation to tender concerning the renovation              sition proceedings:
of the European Community building in Kiev, a contract was
concluded between Ost-Invest und Bauprojektmanagement                    Right to a trade mark or      the word mark ‘MIXERY’ for ‘beer
GmbH. and the Commission. On account of the financial                    sign asserted:                and drinks containing beer’ in
situation of that company, the applicant as general contractor                                         Class 32
was to fulfil that contract vis-à-vis the Commission.
                                                                         Decision of the Oppo-         dismissal of the opposition
                                                                         sition Division:
After the restored building had been handed over, the applicant
requested settlement of its final account of ECU 59 694,44.              Decision of the Board of      cancellation of the decision of the
Following investigations the applicant discovered that payment           Appeal:                       Opposition Division, in so far
of ECU 55 000,00 had been made to another company, a fact                                              as the likelihood of confusion
which is, however, immaterial to the relationship between the                                          between the opposing mark and
applicant and the defendant. The applicant brings an action                                            goods in Class 32, namely ‘non-
pursuant to Article 238 EC and demands payment of the final                                            alcoholic drinks with the excep-
account.                                                                                               tion of non-alcoholic beer’,
                                                                                                       referred to in the application was
                                                                                                       denied, and dismissal of the
                                                                                                       appeal as to the remainder.
 ---pagebreak--- C 227/22               EN                    Official Journal of the European Communities                                       11.8.2001
Grounds of claim:             — Misapplication of Article               the applicant was allocated a post which in her view is
                                   8(1)(b) of Regulation (EC)           considerably less important and offers considerably fewer
                                   No 40/94 (1) (likelihood of          promotion prospects. According to the applicant, if the
                                   confusion)                           principles laid down in Article 141 EC had been implemented
                              — the opposing signs are sub-             in due time and in full, she ought to have obtained the post of
                                   stantially different typo-           principal departmental manager for ‘Personnel and Adminis-
                                   graphically, conceptually and        tration’. She submits that she has thereby suffered substantial
                                   in their sound, and the rel-         material and non-material harm and that, in her case, her
                                   evant goods are dissimilar.          employer has since 1994 committed all breaches of fundamen-
                                                                        tal and human rights, without legal consequences, on the basis
                                                                        of the employer’s ‘organisational freedom’.
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).
                                                                        She contends that, when requests are made before national
                                                                        courts for an order for reference under Article 234 EC, a
                                                                        hearing in accordance with the law is refused. All the judicial
                                                                        proceedings brought by the applicant in respect of European
                                                                        fundamental rights have terminated at first instance since leave
                                                                        to appeal has likewise been refused. Her constitutional appeals
                                                                        have not been accepted for determination, without any reasons
Action brought on 13 April 2001 by Karola Gluiber                       being given. In the applicant’s submission, there has been no
  against the Commission of the European Communities                    review of the breaches of fundamental rights arising from the
                                                                        Treaty on European Union and the Charter of Fundamental
                                                                        Rights of the European Union.
                         (Case T-100/01)
                         (2001/C 227/43)
                                                                        The applicant contends that the material legal provisions in
                  (Language of the Case: German)                        the Federal Republic of Germany require proof of individual
                                                                        fault on the part of the civil servant acting as a precondition for
An action against the Commission of the European Communi-               claims for damages against public authorities. Compensation is
ties was brought before the Court of First Instance of the              therefore not payable to civil servants without proof of special
European Communities on 13 April 2001 by Karola Gluiber,                damage in the case of breaches of fundamental rights arising
Osterhofen (Germany), represented by Christoph Blecken-                 from the Treaty on European Union.
wegner, Lawyer.
The applicant claims that the Court should:
—     declare that the Commission has failed to act pursuant to         She relies on Articles 5 and 6 of the Treaty on European
      the second and third paragraphs of the EC Treaty, in              Union, in conjunction with the Social Charter and the Charter
      conjunction with the third paragraph of Article 232 of            of Fundamental Rights, and on provisions of Council Directive
      the Treaty of Amsterdam, by supervising incorrectly the           75/117, and submits that the Commission has not complied
      implementation and application of European legal rules            with its obligation to monitor implementation of Union law
      into German national law;                                         and of respect for human rights and fundamental freedoms in
                                                                        national German law. The Commission did not act when called
—     declare that the Commission has failed to define its              on to do so by the applicant pursuant to Article 232 EC and
      position on the substance of her call on it to act pursuant       has not responded to the substance of her complaint.
      to the second paragraph of Article 175 of the Treaty, in
      conjunction with the third paragraph of Article 232 of
      the Treaty of Amsterdam;
—     order the defendant to pay the costs.
                                                                        She pleads various situations as examples of infringements of
                                                                        fundamental rights and discrimination at the workplace, as
                                                                        well as of discrimination against women.
Pleas in law and main arguments
The applicant has worked since 1986 as a federal civil servant
in the Straßenneubauamt (New Highway Construction Office)
Bad Kreuznach in the service of the Land Rheinland-Pfalz. In
1994 that office was amalgamated with the Straßenneubauver-
waltung (New Highway Construction Administration) Bad
Kreuznach and, on the allocation of posts in the new office,