CELEX: C2003/055/80
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-370/02: Action brought on 12 December 2002 by Alpenhain-Camembert-Werk Gottfried Hain GmbH & Co. KG and six other undertakings against the Commission of the European Communities

8.3.2003              EN                         Official Journal of the European Union                                           C 55/29
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decision of the defendant of 25 September                Community trade mark          Word mark ‘SnMIX’ — Appli-
      2002 in the appeal procedure R 337/2001-1;                         applied for:                  cation No 1422294
—     order the defendant to pay the costs.                              Goods or services:            Goods in Class 6 (inter alia, met-
                                                                                                       allic semi-finished products in the
                                                                                                       form of sheets, trips, wires, tubes,
                                                                                                       sections and rods)
Pleas in law and main arguments
                                                                         Decision before        the    Refusal of registration by the
                                                                         Board of Appeal:              examiner
Community trade mark          Word mark ‘SnPUR’ — Appli-
applied for:                  cation No 1421775                          Decision of the Board of      Dismissal of appeal
                                                                         Appeal:
Goods or services:            Goods in Class 6 (inter alia, met-
                              allic semi-finished products in the        Pleas in law:                 —     Infringement                of
                              form of sheets, trips, wires, tubes,                                           Article 7(1)(b) and (c) of
                              sections and rods)                                                             Regulation (EC) No 40/94
                                                                                                             since the mark is not descrip-
Decision before        the    Refusal of registration by the                                                 tive.
Board of Appeal:              examiner
Decision of the Board of      Dismissal of appeal
Appeal:
Pleas in law:                 —     Infringement                of
                                    Article 7(1)(b) and (c) of           Action brought on 12 December 2002 by Alpenhain-
                                    Regulation (EC) No 40/94             Camembert-Werk Gottfried Hain GmbH & Co. KG and
                                    since the mark is not descrip-       six other undertakings against the Commission of the
                                    tive.                                                   European Communities
                                                                                                 (Case T-370/02)
                                                                                                  (2003/C 55/80)
                                                                                          (Language of the Case: German)
Action brought on 9 December 2002 by Wieland-Werke
AG against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)                           An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                        (Case T-369/02)                                  European Communities on 12 December 2002 by Alpenhain-
                                                                         Camembert-Werk Gottfried Hain GmbH & Co. KG, established
                                                                         in Lehen/Pfaffing (Germany), Bayerland eG, established in
                         (2003/C 55/79)                                  Nuremberg (Germany), Bergpracht-Milchwerk GmbH & Co,
                                                                         established in Tettnang (Germany), Hochland AG, established
                  (Language of the case: German)                         in Heimenkirch (Germany), Käserei Champignon Hofmeister
                                                                         GmbH & Co. KG, established in Lauben (Germany), Milchwerk
                                                                         Crailsheim-Dinkelsbühl eG, established in Crailsheim (Germ-
                                                                         any) and Rücker GmbH, established in Aurich (Germany),
An action against the Office for Harmonisation in the Internal           represented by J. Salzwedel and M.J. Werner, lawyers, with an
Market (Trade Marks and Designs) was brought before the                  address for service in Luxembourg.
Court of First Instance of the European Communities on
9 December 2002 by Wieland-Werke AG, Ulm (Germany),                      The applicants claim that the Court should:
represented by S. Gruber and F. Graf von Stosch, lawyers.
                                                                         —     annul the inclusion, pursuant to Commission Regulation
                                                                               (EC) No 1829/2002 of 14 October 2002 amending the
The applicant claims that the Court should:                                    Annex to Regulation (EC) No 1107/96 with regard to the
                                                                               name ‘Feta’, of the name ‘Feta’ (PDO) as a protected
—     annul the decision of the defendant of 25 September                      designation of origin (PDO) in the register of protected
      2002 in the appeal procedure R 335/2001-1;                               designations of origin;
—     order the defendant to pay the costs.                              —     order the defendant to pay the costs.
 ---pagebreak--- C 55/30                  EN                           Official Journal of the European Union                                         8.3.2003
Pleas in law and main arguments                                               Action brought on 17 December 2002 by Technische
                                                                              Glaswerke Ilmenau GmbH against the Commission of the
                                                                                                  European Communities
The applicants, the main producers of the cow-milk feta
produced in Germany, seek the annulment of Commission                                                  (Case T-378/02)
Regulation (EC) No 1829/2002 (1).
                                                                                                        (2003/C 55/81)
The applicants submit first of all that the information in                                      (Language of the case: German)
Greece’s notification of 17 January 1995 does not satisfy the
formal requirements for the inclusion of ‘Feta’ in the list of
protected designations of origin. That is so because Greece’s
application was out of time, precluding the Commission from                   An action against the Commission of the European Communi-
registering ‘Feta’ under the shortened procedure pursuant to                  ties was brought before the Court of First Instance of the
Article 17 of Regulation (EEC) No 2081/92 ( 2). Furthermore, it               European Communities on 17 December 2002 by Technische
is not possible for the name ‘Feta’ to be protected under                     Glaswerke Ilmenau GmbH, whose registered office is in
Article 17 since Greece did not introduce protection of feta at               Ilmenau (Germany), represented by G. Schohe and C. Arhold,
national level until 11 January 1994, that is to say almost six               Rechtsanwälte, with an address for service in Luxembourg.
months after Regulation (EEC) No 2081/92 entered into force.
                                                                              The applicant claims that the Court should:
The applicants further submit that the contested regulation                   —     annul the Commission’s decision of 2 October 2002,
does not comply in the slightest with the grounds of the                            C(2002) 2147 endg., on State aid by Germany in favour
decision of the Court of Justice of 16 March 1999 (3), according                    of Technische Glaswerke Ilmenau GmbH;
to which the Commission must accord decisive importance to
the markets which, at the time of Greece’s application,                       —     order the Commission to pay the costs.
had already lawfully developed in the Member States and
throughout the world. Moreover, the product ‘feta’ is not
capable of being protected since it is not a protected desig-
nation of origin but rather a generic name. Under Article 3(1)                Pleas in law and main arguments
of Regulation No 2081/92 generic names cannot be registered.
Furthermore, feta is a product which originates not just from
Greece, but from the Mediterranean and Balkan region. Feta                    The applicant acquired four glass production lines from
has been produced and consumed in considerable quantities                     Ilmenauer Glaswerke GmbH, in liquidation, an undertaking of
for decades in six Member States. In addition, the burden rests               the German Bundesanstalt für vereinigungsbedingte Son-
with Greece to prove that feta is not a generic name; it has not              deraufgaben (Federal Institution for Special Tasks arising from
adduced evidence discharging this burden.                                     Unification) (‘BvS’). In the contested decision, the Commission
                                                                              classified two measures by Germany in connection with that
                                                                              acquisition as State aid: There was a guarantee in favour of BvS
                                                                              for a remaining purchase price balance of DEM 1,8 million.
The applicants also argue that the requirements of Articles 2                 BvS had declared itself willing to replace that guarantee by a
and 4 of Regulation No 2081/92 are not met. Feta is not a                     land charge. In addition, Thüringer Aufbaubank (Thüringen
traditional geographic name. The name ‘feta’ comes from                       Bank for Reconstruction) (‘TAB’) had granted the applicant a
Italian and means ‘slice’, and was a generic name before the                  loan of DEM 2,0 million. The Commission held these measures
adoption of Regulation No 2081/92 and thus allowed to be                      incompatible with the common market.
used in intra-Community trade between Member States. Finally
the registration of ‘Feta’ infringes the Community-law funda-
mental rights to protection of property and of exercise of a                  The applicant argues that the loan by TAB to the applicant
profession, nor is the injury to property justified by Article 30             was not an aid, because it corresponded to market conditions,
EC.                                                                           was covered by a general aid regulation approved by the
                                                                              Commission, and served to compensate for a claim for
                                                                              damages of the applicant against the Land Thüringen which
( 1) Commission Regulation (EC) No 1829/2002 of 14 October 2002
                                                                              was justified from the standpoint of State liability. The
     amending the Annex to Regulation (EC) No 1107/96 with regard             replacement of the guarantee in respect of the residual
     to the name ‘Feta’ (OJ 2002 L 277, p. 10).                               purchase price for three production lines by a land charge was
( 2) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the               also no aid.
     protection of geographical indications and designations of origin
     for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).
( 3) Judgment of the Court of Justice in Joined Cases C-289/96, C-293/        The applicant further argues that the Commission has not
     96 and C-299/96 Denmark and Others v Commission [1999]                   demonstrated that the measures could affect trade between
     ECR I-1541.                                                              Member States. Furthermore, refusal of authorisation under
                                                                              Article 87(3)(c) EC was based on obvious errors of assessment
                                                                              and reasoning. The Commission refused to take important
                                                                              facts into account in the considerations which it took as the