CELEX: C2001/186/16
Language: en
Date: 2001-06-30 00:00:00
Title: Case T-80/01: Action brought on 9 April 2001 by Barbara Diehl-Leistner against the Commission of the European Communities

C 186/10              EN                     Official Journal of the European Communities                                      30.6.2001
Action brought on 5 April 2001 by Robert Bosch GmbH                                                   — Registration of the mark in
against the Office for Harmonisation in the Internal                                                      question would accord with
              Market (Trade Marks and Designs)                                                            the other aspects of the
                                                                                                          decision-making practice fol-
                                                                                                          lowed by the Boards of
                         (Case T-79/01)                                                                   Appeal.
                                                                                                      — Infringement,        alternatively
                        (2001/C 186/15)                                                                   misinterpretation,            of
                                                                                                          Article 7(1)(b) and (c) of Regu-
                                                                                                          lation No 40/94.
                  (Language of the case: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
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
5 April 2001 by Robert Bosch GmbH, of Stuttgart (Germany),
represented by Stefan Völker, Rechtsanwalt, with an address
for service in Luxembourg.
The applicant claims that the Court should:
—     annul the decision adopted on 31 January 2001 by the
      First Board of Appeal of the Office for Harmonisation in          Action brought on 9 April 2001 by Barbara Diehl-Leistner
      the Internal Market (Trade Marks and Designs) in the                against the Commission of the European Communities
      appeal proceedings registered under number
      R 124/2000-1 concerning Community trade mark appli-
      cation No 761 270;                                                                          (Case T-80/01)
—     order the defendant Office to pay the costs.                                               (2001/C 186/16)
Pleas in law and main arguments                                                           (Language of the case: German)
                                                                        An action against the Commission of the European Communi-
Applicant for the Com-        the applicant                             ties was brought before the Court of First Instance of the
munity trade mark:                                                      European Communities on 9 April 2001 by Barbara Diehl-
                                                                        Leistner, Luxembourg, represented by Lex Thielen, Lawyer,
The trade mark con-           the verbal mark ‘Kit Pro’                 with an address for service in Luxembourg.
cerned:
                                                                        The applicant claims that the Court should:
Goods or service con-         goods and services in Class 12
cerned:                       (parts for repairing drum brakes          —     annul the decision notified to the applicant by letter of
                              in land vehicles)                               the selection board for Competition COM/A/12/98, 02
                                                                              of 17 April 2000 that she is not included on the list of
Decision        contested     refusal of the application for regis-           successful candidates in the open competition and the
before the Board of           tration of the mark                             decision of 17 January 2001 rejecting her complaint of
Appeal:                                                                       4 July 2000;
Grounds of claim:             — The mark is not descriptive             —     order the defendant to pay the costs.
                                  within the meaning of
                                  Article 7(1)(c) of Regulation
                                  (EC) No 40/94 (1).                    Pleas in law and main arguments
                              — There is no need to keep the
                                  mark free.
                                                                        The applicant took part in Open Competition COM/A/12/98,
                              — The mark possesses the mini-            02 and was informed that she was not placed on the list of
                                  mum level of distinctiveness          successful candidates in the competition because she did not
                                  necessary for trade-mark pro-         achieve the minimum mark in the oral test. Her complaint
                                  tection.                              against that decision was rejected by the defendant.
 ---pagebreak--- 30.6.2001              EN                     Official Journal of the European Communities                                        C 186/11
The applicant alleges, inter alia, that the principle of equal           applicants submitted to the Commission on 20 October 2000
treatment was infringed in her oral test. That test, which was           that the gypsum tanker Arizona be exempted from application
conducted in German as ‘Language 1’, was not attended by a               of the ‘old-for-new obligations’ laid down in Article 4(1) of
member of the selection board with German as mother tongue,              Regulation No 718/1999. In the contested decision, the
while other candidates had examiners whose mother tongue                 Commission decided not to grant the requested exemption, a
was their ‘Language 1’. The applicant contends that she was              decision which has a direct adverse effect on the applicants’
not always understood correctly during the test. By reason of            interests.
that infringement of the principle of equal treatment the
selection board failed to observe the rules governing its work,
and it was not ensured in accordance with Article 27 of the
Staff Regulations that the defendant secured the services of             The vessel Arizona is a gypsum tanker which transports
officials of the highest standard of ability.                            calcined gypsum. In the contested decision, the Commission
                                                                         takes the view, by reference to the conditions laid down in
                                                                         Article 4(6) of the regulation, that if those conditions are
                                                                         satisfied, the vessel does not contribute to an increase in fleet
                                                                         capacity and thus does not adversely affect the objectives of
                                                                         the Community rules. The Commission states that, while
                                                                         consulting the expert group ‘capacity policy and promotion of
                                                                         Community inland waterway transport’, it learned that, as a
                                                                         gypsum tanker, the vessel carries out transport operations in
                                                                         the same way as other vessels on the market which also
                                                                         transport gypsum but which have not benefited from exemp-
Action brought on 5 April 2001 by M.O.H. Verdoodt and                    tion from the ‘old-for-new’ rule.
I.E.M. Rademakers-Verdoodt against the Commission of
                  the European Communities
                                                                         According to the applicants, however, the consignments for
                          (Case T-81/01)                                 transport by the Arizona are not ’gypsum’ but rather calcined
                                                                         gypsum. Previously, calcined gypsum was transported solely
                                                                         by lorry: apart from the Arizona, there is no vessel which can
                         (2001/C 186/17)                                 and may transport calcined gypsum. The gypsum which other
                                                                         vessels transport is therefore a different type of cargo to the
                                                                         calcined gypsum which the Arizona transports. Other vessels
                                                                         transport loose or rough gypsum. Moreover, the market for
                    (Language of the case: Dutch)
                                                                         vessels which transport ‘gypsum’ is different to that for the
                                                                         transport of calcined gypsum. The market for the transpor-
An action against the Commission of the European Communi-                tation of calcined gypsum consists of lorry transport and, since
ties was brought before the Court of First Instance of the               the construction of the Arizona, of transport by the Arizona,
European Communities on 5 April 2001 by M.O.H. Verdoodt                  which thus, each year, moves the equivalent of some 2 400 lor-
and I.E.M. Rademakers-Verdoodt, both resident in Schoten                 ries. The Arizona is technically unsuitable for the transportation
(Belgium), represented by J. van Dam, of the Rotterdam Bar.              of other goods. The European Commission’s view that, follow-
                                                                         ing minor modifications, the Arizona could transport any type
                                                                         of goods is clearly attributable to erroneous information.
The applicants claim that the Court should:
(1) Annul Commission Decision SG (2001) D/286098 of
      9 February 2001 not to grant the applicants the requested          The Commission errs in its conclusion that granting the
      exemption from the old-for-new obligations set out in              Arizona exemption from the old-for-new rule would result in
      Article 4(1) of Council Regulation (EC) No 718/1999 of             a distortion of competition. On the contrary, ‘fair and honest
      29 March 1999 on a Community-fleet capacity policy to              treatment of all market players’ means that the Arizona, as
      promote inland waterway transport, and rule that the               a specialised vessel satisfying the classification criteria of
      requested exemption ought to be granted in respect of              Article 4(6) of Regulation No 718/1999, ought to be exempted
      the Arizona;                                                       from the old-for-new obligations.
(2) Order the defendant to pay the costs.
                                                                         The applicants offer to substantiate their views by all legal
                                                                         means, in particular by way of witnesses and experts.
Pleas in law and main arguments
The applicants challenge Commission Decision SG (2001)
D/286098 of 9 February 2001, which is addressed to them.
That decision was issued in response to the request which the