CELEX: C2003/289/56
Language: en
Date: 2003-11-29 00:00:00
Title: Case T-306/03: Action brought on 9 September 2003 by Volkswagen AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

C 289/26                EN                            Official Journal of the European Union                                         29.11.2003
Action brought on 21 August 2003 by the Consorzio per                         Decision of the Oppo-          Refusal of the application for
la Tutela del Formaggio Grana Padano against the Office                       sition Division:               registration.
for Harmonisation in the Internal Market (Trade Marks
                       and Designs) (OHIM)                                    Decision of the Board of       Annulment of the Opposition
                                                                              Appeal:                        Division’s decision and rejection
                                                                                                             of the opposition.
                          (Case T-291/03)
                                                                              Pleas in law:                  —     The term ‘GRANA’ is not
                                                                                                                   generic.
                          (2003/C 289/55)
                                                                                                             —     Breach of Article 13(1)(a),
                                                                                                                   (b), (c) and (d) of Council
                     (Language of the case: Italian)
                                                                                                                   Regulation (EEC) No 2081/
                                                                                                                   92 of 14 July 1992 on the
                                                                                                                   protection of geographical
                                                                                                                   indications and designations
An action against the Office for Harmonisation in the Internal                                                     of origin for agricultural
Market was brought before the Court of First Instance of the                                                       products and foodstuffs (1),
European Communities on 21 August 2003 by the Consorzio                                                            and of the national rules on
per la Tutela del Formaggio Grana Padano, represented by                                                           company designations of
Paolo Perani, Paolo Colombo and Alex Schmitt, lawyers.                                                             origin.
Biraghi S.p.A. was also a party to the proceedings before the
Board of Appeal.                                                                                             —     Likelihood of confusion
                                                                                                                   (Article 8(1)(b) of Regulation
                                                                                                                   No 40/94).
The applicant claims that the Court should:
                                                                              (1) OJ L 208 of 24.7.92, p. 1.
—     annul the registration of the Community trade mark
      No 736.934 GRANA BIRAGHI owned by Biraghi S.p.A.
      in so far as, in particular it is in conflict with the combined
      provisions of Article 142 of Regulation (EEC) No 40/94
      and Article 13(1) of Regulation (EEC) No 2081/92.
                                                                              Action brought on 9 September 2003 by Volkswagen AG
Pleas in law and main arguments                                               against the Office for Harmonisation in the Internal
                                                                                       Market (Trade Marks and Designs) (OHIM)
Applicant for Com-               Biraghi S.p.A.
munity trade mark:                                                                                     (Case T-306/03)
Community trade mark             Word mark ‘GRANA BIRAGHI’                                             (2003/C 289/56)
sought:                          — Application No 736.934 for
                                 products in Class 29: ‘Cheese, in
                                 particular cheese from cows’ milk,                             (Language of the case: German)
                                 mature cheese, hard cheese, whole
                                 cheeses, portions of cheese with
                                 or without rind, packaged cheese
                                 of various sizes, grated and pack-           An action against the Office for Harmonisation in the Internal
                                 aged cheese.’                                Market (Trade Marks and Designs) (OHIM) was brought before
                                                                              the Court of First Instance of the European Communities on
Proprietor of mark or            The applicant Consorzio.                     9 September 2003 by Volkswagen AG, Wolfsburg (Germany),
sign cited in the oppo-                                                       represented by S. Risthaus, lawyer.
sition proceedings:
                                                                              The applicant claims that the Court should:
Mark or sign cited in            Numerous national and inter-
opposition:                      national registrations and appli-
                                 cations to register the trade marks          —     annul the decision of 7 July 2003 of the Second Board
                                 ‘GRANA’ and ‘GRANA PADANO’                         of Appeal of the Office for Harmonisation in the
                                 and trade marks containing those                   Internal Market (Trade Marks and Designs) in Case
                                 terms in combination with figu-                    R 1012/2001-2;
                                 rative elements and words for
                                 products in Class 29.                        —     order the defendant to pay the costs of the proceedings.
 ---pagebreak--- 29.11.2003             EN                        Official Journal of the European Union                                         C 289/27
Pleas in law and main arguments                                          Pleas in law and main arguments
Community trade mark          The word mark ‘CLIMATIC’ —                 The applicant runs a medium-sized publishing company and
sought:                       Application No 1705557                     publishes the Leipzig magazine ‘Kreuzer’. The magazine is
                                                                         financed inter alia by tobacco advertising.
Goods or services:            Goods and services in Classes 11,
                              12 and 37 (inter alia, apparatus
                              for heating, steam generating,             The applicant seeks a declaration that Article 3(1) of Directive
                              refrigerating, drying and venti-           2003/33/EC is void. It argues that the directive breaches
                              lating; repair)                            Community law from several points of view. The directive
                                                                         infringes Article 251 EC as the published version of the
Decision        contested     Refusal by the examiner to register        directive differs from that adopted by the Council and the
before the Board of           the mark in respect of goods and           Parliament. Further, the directive breaches Article 95 EC, as, in
Appeal:                       services in Classes 11 and 37              the case of a local or regional magazine such as that produced
                                                                         by the applicant, there are no internal market implications and
                                                                         the Community legislature thus has no role to play.
Decision of the Board of      Dismissal of the appeal
Appeal:
                                                                         The applicant submits further that the directive is vague and
Pleas in law:                 —     Infringement of Article 74(1)        thus breaches the constitutional requirement of certainty. It
                                    of Regulation (EC) No 40/94          also infringes the requirement under Article 253 EC that
                                                                         reasons should be stated, as no reasons are actually given
                              —     Legally incorrect application        regarding the existence of obstacles to trade which could be
                                    of Article 7(1)(b) of Regu-          removed by the directive.
                                    lation (EC) No 40/94
                                                                         Furthermore, the applicant submits that the directive infringes
                                                                         the freedom of expression safeguarded by Article 11 of the
                                                                         Charter of fundamental rights of the European Union and
                                                                         Article 10(1) of the ECHR. That includes the right to ‘commer-
                                                                         cial speech’. The directive prejudices the placing of advertising
                                                                         and positive editorial reporting, without thereby in any way
Action brought on 11 September 2003 by Kreuzer                           allowing the objective of the directive to be attained. Finally,
Medien GmbH against the European Parliament and the                      the directive infringes entrepreneurial freedom, the property
                                                                         rights of the applicant and the prohibition on going beyond
               Council of the European Union
                                                                         what is necessary laid down by the third paragraph of Article 5
                                                                         EC.
                         (Case T-310/03)
                                                                         (1) OJ 2003 L 152, p. 16.
                        (2003/C 289/57)
                  (Language of the case: German)
                                                                         Action brought on 15 September 2003 by Hans-Peter
An action against the European Parliament and the Council of
                                                                         Wilfer against the Office for Harmonisation in the Internal
the European Union was brought before the Court of Justice
                                                                                   Market (Trade marks and Designs) (OHIM)
of the European Communities on 11 September 2003 by
Kreuzer Medien GmbH, represented by Dr U. Kornmeier and
Dr D. Valbert.                                                                                    (Case T-315/03)
                                                                                                 (2003/C 289/58)
The applicant claims that the Court should:
                                                                                            (Language of the case: German)
—     declare Article 3(1) of Directive 2003/33/EC of the
      European Parliament and of the Council of 26 May 2003
      on the approximation of the laws, regulations and
      administrative provisions of the Member States relating            An action against the Office for Harmonisation in the Internal
      to the advertising and sponsorship of tobacco products (1)         Market (Trade Marks and Designs) (OHIM) was brought before
      void;                                                              the Court of First Instance of the European Communities on
                                                                         15 September 2003 by Hans-Peter Wilfer, represented by
—     order the defendant to bear the costs.                             A. Kockläuner, lawyer.