CELEX: C2003/251/28
Language: en
Date: 2003-10-18 00:00:00
Title: Case T-275/03: Action brought on 4 August 2003 by Focus Magazin Verlag GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 251/14              EN                        Official Journal of the European Union                                          18.10.2003
The applicant further alleges: breach of the duty to give                contested Decision. The opening of the procedure was not
reasons for decisions, the duty to have regard for the welfare           properly based on public health considerations. Furthermore,
of officials and of the principle of sound administration;               the referral and the opening of the procedure covered the
manifest error of assessment; breach of the principle of                 entire content of the SPC. This goes beyond the permissible
legitimate expectations; and, finally, misuse of powers.                 scope of an Article 30 referral, and such a procedure does not
                                                                         allow for the adoption of a harmonised SPC. Moreover, the
                                                                         opening of the procedure lacked proper reasoning.
                                                                         Furthermore, the applicants submit that the harmonisation of
                                                                         the SPCs in the contested Decision was illegal, since the
                                                                         Commission did not have the power to adopt the Decision.
                                                                         In the alternative, the applicants argue that even if the
Action brought on 1 August 2003 by Merck Sharp &                         Commission could, in principle, have harmonised the SPCs
Dohme Limited and 8 others against the Commission of                     for RENITEC, the Commission has failed to identify any public
                 the European Communities                                health reasons justifying the harmonisation of the SPCs.
                        (Case T-273/03)
                        (2003/C 251/27)                                  The applicants finally claim that the contested Decision is
                                                                         illegal because binding time-limits of the Directive were not
                  (Language of the case: English)                        observed and because the Commission and the Committee for
                                                                         Proprietary Medicinal Products failed to provide sufficient rea-
                                                                         soning.
An action against the Commission of the European
Communities was brought before the Court of First Instance
of the European Communities on 1 August 2003 by Merck
Sharp & Dohme Limited, Hoddesdon, (United Kingdom),                      (1) Directive 2001/83/EC of the European Parliament and of the
Merck Sharp & Dohme B.V., Haalem, (Netherlands),                             Council on the Community code relating to medicinal products
Laboratoires Merck Sharp & Dohme-Chibret, Paris, (France),                   for human use (OJ L 311 of 28.11.2001, p. 67).
MSD Sharp & Dohme GmbH, Haar, (Germany), Merck Sharp
& Dohme (Italia) SpA., Rome, (Italy), Merck Sharp & Dohme,
LDA, Paço de Arcos, (Portugal), Merck Sharp & Dohme de
Espana S.A., Madrid, (Spain), Merck Sharp & Dohme Ges.m.b.
H., Vienna, (Austria), and VIANEX S.A., Nea Erythrea, (Greece),
represented by Mr G. Berrisch and Mr P. Bogaert, lawyers.
                                                                         Action brought on 4 August 2003 by Focus Magazin
The applicants claim that the Court should:                              Verlag GmbH against the Office for Harmonisation in
                                                                                the Internal Market (Trade Marks and Designs)
—     annul the contested Decision;                                                                (Case T-275/03)
                                                                                                   (2003/C 251/28)
—     order the Commission to pay the applicant's costs.
                                                                         (Language of the case to be determined pursuant to Article 131(2) of
Pleas in law and main arguments                                          the Rules of Procedure — language in which the application was
                                                                                                  submitted: German)
The applicants are Marketing Authorization Holders of the
medicinal product RENITEC and associated trade names.
RENITEC contains the active ingredient ‘enalapril’ and is used           An action against the Office for Harmonisation in the Internal
in treatment of hypertension and heart failure.                          Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
The applicants challenge the Commission Decision C(2003)                 4 August 2003 by Focus Magazin Verlag GmbH, Munich
1752 of 21 May 2003 concerning the placing on the market                 (Germany), represented by U. Gürtler, lawyer. ECI Telecom
of medicinal products for human use containing the substance             Ltd., Petach Tikva (Israel) was also a party to the proceedings
‘enalapril’ by which the Commission harmonised the Summary               before the Board of Appeal.
of Product Characteristics (‘SPC’) for RENITEC and associated
trade names. The contested Decision was adopted as a result of
a referral procedure under Article 30 of Directive 2001/83/EC            The applicant claims that the Court should:
of the European Parliament and the Council (1).
                                                                         —     annul Decision No 2055/2001 of the Opposition
The applicants argue that the initiation of the Article 30                     Division of the defendant of 27 August 2001 in opposi-
procedure was illegal and that that entails the illegality of the              tion proceedings B 288680;
 ---pagebreak--- 18.10.2003            EN                           Official Journal of the European Union                                        C 251/15
—     annul the decision of the Fourth Board of Appeal of                 Action brought on 5 August 2003 by Galileo
      the defendant of 30 April 2003 in appeal proceedings                International Technology LLC and 13 Others against the
      R 913/2001-4;                                                               Commission of the European Communities
                                                                                                  (Case T-279/03)
—     instruct the defendant to make a determination on the
                                                                                                 (2003/C 251/29)
      merits in opposition proceedings B 288680, taking
      account of the legal view of the matter formed by the
                                                                                            (Language of the case: French)
      adjudicating court;
                                                                          An action against the Commission of the European
                                                                          Communities was brought before the Court of First Instance
—     order the defendant to pay the costs of the proceedings.            of the European Communities on 5 August 2003 by Claude
                                                                          Delcorde, Jean-Noël Louis, Julie-Anne Delcorde and Spyros
                                                                          Maniatopoulos, lawyers, represented by Claude Delcorde,
Pleas in law and main arguments                                           Jean-Noël Louis, Julie-Anne Delcorde and Spyros
                                                                          Maniatopoulos, lawyers, with an address for service in
                                                                          Luxembourg.
Applicant for Community        ECI Telecom Ltd.
trade mark:
Community trade mark           Word mark ‘Hi-FOCuS’ in respect
sought:                        of goods and services in Classes 9
                               and 38 — application No                    The applicants claim that the Court should:
                               1 338 029
Proprietor of mark or          The applicant
sign cited in the opposi-
tion proceedings:                                                         —    Prohibit the Commission from making any use of the
Mark or sign cited in          The German mark ‘FOCUS’ (No                     word ‘Galileo’ in relation to the satellite radio navigation
opposition:                    394 07 564) in respect of goods                 system project and to cease causing directly or indirectly
                               and services in Classes 3, 5, 6, 7,             any third party whatsoever to use that word in the con-
                               8, 9, 14, 15, 16, 18, 20, 21, 24,               text of that project, and prohibit it from having any part
                               25, 26, 28, 29, 30, 33, 34, 38,                 whatsoever in the use of that word by any third party;
                               39, 41 and 42
Decision of the Opposi-        Rejection of the opposition
tion Division:
                                                                          —    order the Commission to pay the applicants, acting
Decision of the Board of       Dismissal    of    the   applicant's            jointly and severally, the amount of EUR 50 million as
Appeal:                        appeal                                          compensation for the material damage suffered;
Pleas in law:                  —    Submission in the opposi-
                                    tion proceedings of adequate
                                    evidence of the applicant's
                                    earlier right;
                                                                          In the alternative,
                               —    Infringement of the appli-
                                    cant's right to a hearing;
                               —    Infringement of the appli-
                                    cant's right of due process;
                                                                               —    in the event that the Commission continues to use
                               —    Infringement of Article                         the word ‘Galileo’, order it to pay the applicants an
                                    42 of Regulation (EC) No                        amount of EUR 240 million;
                                    40/94 (1) and Rule 20(3)
                                    of Regulation (EC) No
                                    2868/95 (2).
                                                                               —    order the Commission to pay the applicant, as from
                                                                                    the date of filing of the application, default interest
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                     calculated by reference to the ECB rate plus 2 per
    Community trade mark (OJ 1994 L 11, p. 1).                                      cent;
(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
    implementing Council Regulation (EC) No 40/94 on the
    Community trade mark (OJ 1995 L 303, p. 1).
                                                                               —    order the defendant to pay the costs.