CELEX: C2002/289/50
Language: en
Date: 2002-11-23 00:00:00
Title: Case T-268/02: Action brought on 5 September 2002 by National Resource for Innovative Training Research and Employment Actions Limited (NRITEA) against the Commission of the European Communities

C 289/26               EN                      Official Journal of the European Communities                                     23.11.2002
Pleas in law and main arguments                                           Action brought on 5 September 2002 by National
                                                                          Resource for Innovative Training Research and Employ-
                                                                          ment Actions Limited (NRITEA) against the Commission
                                                                                          of the European Communities
Applicant for the Com-         The applicant
munity trade mark:
                                                                                                  (Case T-268/02)
Community trade mark           The word/figurative mark ‘atlasre-                                 (2002/C 289/50)
applied for:                   isen’ for goods in Classes 16,
                               36, 39, 41 and 42 (application
                               No 376210)                                                   (Language of the case: English)
Proprietor of the oppos-       Fritidsresor AB
ing trade mark or sign:
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 5 September 2002 by National
Opposing trade mark or         The national Swedish word/figu-            Resource for Innovative Training Research and Employment
sign:                          rative mark ‘Atlas resor’ for ser-         Actions Limited (NRITEA), Newcastle Upon Tyne (United
                               vices in Class 39 (travel arrange-         Kingdom), represented by Ms Alison Tate, Solicitor.
                               ments and travel agencies)
                                                                          The applicant claims that the Court should:
Decision of Opposition         Dismissal of application for Com-
Division:                      munity trade mark for the services
                               ‘arranging transport services by           —     annul the decision of the Commission dated 23 May
                               water, land and air; arranging and               2002 and the plaintiff be given a detailed analysis of each
                               conducting travel by water, land                 and every dossier on which there is alleged to be a
                               and air; arranging and providing                 problem and be allowed sufficient time to respond;
                               travel for tourists; providing tick-
                               ets; providing food and drink and          —     in the alternative, annul the Decision of 23 May 2002
                               temporary accommodation in                       and a declaration be made that Article 23 of Regulation
                               hotels and restaurants’ and admis-               (EEC) 4253/88 should apply in this instance rather than
                               sion of the registration for the                 Article 24.
                               remaining goods and services
Decision of Board of           Dismissal of applicant’s appeal
Appeal:                                                                   Pleas in law and main arguments
Pleas in law:                  —     Insufficient proof of genuine        The applicant is a voluntary organisation and a company
                                     use of the trade mark by the         limited by guarantee that assists and monitors the provision of
                                     opponent;                            training and development of underprivileged and deprived
                                                                          individuals in the United Kingdom. In this respect, the
                               —     Failure to comply with               applicant worked together with The MARI Group Limited, a
                                     Article 8(1) of Regulation           commercial company, specialised in training.
                                     No 40/94 (1). The applicant
                                     claims there is no likelihood
                                     of confusion between the             Both companies were subject to several detailed audits.
                                     trade marks.
                                                                          Following these audits and as a result of various irregularities
                                                                          found in the execution of the projects, the Commission decided
                                                                          to reduce the total assistance from the European Social Fund.
                                                                          This Decision is contested by the applicant in the present case.
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
     Community trade mark (OJ 1994 L 11, p. 1).
                                                                          The applicant claims that the Commission has infringed an
                                                                          essential procedural requirement in that it failed to provide the
                                                                          applicant with the opportunity to defend itself. According to
                                                                          the applicant, the Commission never provided directly to the
                                                                          applicant sufficient details of the allegations raised.
 ---pagebreak--- 23.11.2002              EN                       Official Journal of the European Communities                                     C 289/27
The applicant furthermore invokes a violation of its right to a             —     order that the costs of and occasioned by these proceed-
fair trial. According to the applicant, there was no fair and                     ings be borne by the defendant.
independent hearing in the matter. The applicant also invokes
a violation of the right of access to documents. In addition, the
Commission violated the principle of good administration by
not dealing with the matter within a reasonable time limit.
                                                                            Pleas in law and main arguments
Finally, the applicant submits that the Commission has misused
its powers by implementing Article 24 of Regulation (EEC)
4253/88 (1). According to the applicant, Article 24 should
only be used in the event of impropriety. In the present case,
the Commission should have applied Article 23 of the                        The applicants are producers of CD-Rs established in Taiwan
regulation to recover the money overpaid as a result of                     and export CD-Rs to the Community. In February 2001, an
mistakes.                                                                   anti-dumping complaint was lodged before the Commission
                                                                            by the Committee of European CD-R Manufacturers. Following
                                                                            this complaint, the Commission initiated an investigation
( 1) Regulation (EEC) No 4253/88 of 19 December 1988, laying down           regarding imports originating in Taiwan. Provisional anti-
     provisions for implementing Regulation (EEC) No 2052/88 as             dumping measures were imposed by Commission Regulation
     regards coordination of the activities of the different Structural     2479/2001 (1). These measures were made definitive by
     Funds between themselves and with the operations of the                Council Regulation 1050/2002 (2). The applicants contest the
     European Investment Bank and the other existing financial              latter regulation with their present action.
     instruments (OJ 1988 L 374, p. 1).
                                                                            The applicants allege infringement of Articles 2(10) and 2(11)
                                                                            of Regulation 384/96 on protection against dumped imports
                                                                            from countries not members of the European Community (3).
                                                                            According to the applicants, the Council committed a manifest
                                                                            error in the assessment of the facts and of law by finding that
                                                                            the applicants engaged in ‘targeted dumping’ practices and
Action brought on 6 September 2002 by Ritek Corpor-                         allowed use of the average-to-transaction methodology in the
ation and Prodisc Technology Inc. against the Council of                    calculation of the dumping margin of the applicants.
                       the European Union
                          (Case T-274/02)
                                                                            According to the applicants, no exceptional treatment of
                                                                            certain transactions to certain customers, in certain regions or
                         (2002/C 289/51)                                    in certain time periods, i.e. no targeted dumping, took place
                                                                            during the investigation period. The applicants submit that
                                                                            export and domestic price patterns were almost identical and
                    (Language of the case: English)                         that the prices for CD-Rs declined worldwide. In these
                                                                            circumstances, there was, according to the applicants, no
                                                                            place for disguising the effects of dumping through targeted
                                                                            dumping.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 6 September 2002 by Ritek Corporation,
Hsin Chu Industrial Park, Taiwan R.O.C. and Prodisc Tech-                   The applicants furthermore claim that by using the average-to-
nology Inc., Taipei Hsien, Taiwan R.O.C, represented by Dr                  transaction methodology which refers to constructed normal
Konstantinos Adamantopoulos, Barrister, with an address for                 values, the Commission failed to address the purpose of
service in Luxembourg.                                                      targeted dumping, which is to conceal dumping by charging
                                                                            different export prices. According to the applicants, the
                                                                            Commission should refer to actual prices when investigating
The applicant claims that the Court should:                                 targeted dumping.
—      declare, pursuant to Article 230 and 231 of the Treaty,
       that Council Regulation (EC) 1050/2002 of 13 June 2002
       imposing a definitive anti-dumping duty and collecting               Secondly, the applicants allege infringement of Article 2 of
       definitively the provisional duty imposed on imports of              Regulation 384/96. The applicant claims that the Council
       recordable compact disks originating in Taiwan is null ad            made a manifest error of assessment of the facts in calculating
       void;                                                                the dumping margin of the applicants by using the ‘zeroing