CELEX: C2003/171/51
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-120/03: Action brought on 10 April 2003 by Synopharm GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

19.7.2003              EN                          Official Journal of the European Union                                             C 171/29
Action brought on 24 March 2003 by Elisabeth von                           limit, which favours undertakings of less than 20 hectares, also
Pezold against the Commission of the European Com-                         results in severe distortion of competition, in contravention of
                              munities                                     Article 35 of Regulation No 1257/1999 ( 1).
                         (Case T-108/03)                                   (1 ) Council Regulation (EC) No 1257/1999 of 17 May 1999 on
                                                                                support for rural development from the European Agricultural
                                                                                Guidance and Guarantee Fund (EAGGF) and amending and
                                                                                repealing certain Regulations (OJ L 160, 26.06.1999, p. 80).
                         (2003/C 171/50)
                  (Language of the case: German)
                                                                           Action brought on 10 April 2003 by Synopharm GmbH
An action against the Commission of the European Communi-                  & Co. KG against the Office for Harmonisation in the
ties was brought before the Court of First Instance of the                           Internal Market (Trade Marks and Designs)
European Communities on 24 March 2003 by Elisabeth von
Pezold, residing in Pöls (Austria), represented by R. von Pezold,                                     (Case T-120/03)
lawyer.
                                                                                                      (2003/C 171/51)
The applicant claims that the Court should:
                                                                           (Language of the case to be determined in accordance with
                                                                           Article 131(2) of the Rules of Procedure — Language in which the
—     annul the approval of point 6.2.1.4.1. of the guidelines                               application was submitted: German)
      on the implementation of the ‘other measures’ forming
      part of the Austrian rural development programm
      ZI.21.200/50-II/00 of 27 July 2000, C III in Section 6,
      headed ‘Forestry’, granted by the Commission decision of             An action against the Office for Harmonisation in the Internal
      14 July 2000 approving a rural development program-                  Market (Trade Marks and Designs) was brought before the
      ming document for the Republic of Austria for the period             Court of First Instance of the European Communities on
      from 2000 to 2006 (C(2000) 1973 final);                              10 April 2003 by Synopharm GmbH & Co. KG, Barsbüttel
                                                                           (Germany), represented by G. J. Hodapp, lawyer. Pentafarma-
                                                                           Sociedade Técnico-Medicinal, LDA, Sacavém (Portugal) was
—     in the alternative, if it finds that point 6.2.1.4.1. of those
                                                                           also a party to the proceedings before the Board of Appeal.
      guidelines has not been approved by the Commission,
      deliver a judgment to that effect;
                                                                           The applicant claims that the Court should:
—     order the defendant to pay the costs of the proceedings.
                                                                           —      annul Decision R 44/2002-3 of the Third Board of
                                                                                  Appeal of the Office for Harmonisation in the Internal
                                                                                  Market of 15 January 2003 in so far as the appeal was
                                                                                  dismissed;
Pleas in law and main arguments
                                                                           —      order the Office to pay the costs.
The applicant owns a forestry undertaking with forests cover-
ing approximately 3 500 hectares. She submits that                         Pleas in law and main arguments
point 6.2.1.4.1. of the Austrian guidelines on the implemen-
tation of the ‘rural development programm’ limits applications
for support for forests to a maximum of 20 hectares per                    Applicant for Com-               The applicant
undertaking, and that this limit was approved by the contested             munity trade mark:
decision.
                                                                           Community trade mark             The word mark ‘DERMASYN’ for
                                                                           sought:                          goods in Classes 1, 3 and 5 (inter
                                                                                                            alia, cosmetics, medicines, pharm-
As grounds for her action, the applicant submits that the                                                   aceutical and sanitary prep-
setting of a limit of 20 hectares constitutes support of                                                    arations and disinfectants for the
individual undertakings, rather than support of the forests per                                             human body) — Application No
se, as required by Regulation No 1257/1999. Moreover, the                                                   662 403
 ---pagebreak--- 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.