CELEX: C2002/068/08
Language: en
Date: 2002-03-16 00:00:00
Title: Case C-473/01 P: Appeal brought on 6 December 2001 by Procter & Gamble Company against the judgment delivered on 19 September 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-128/00 between Procter & Gamble Company and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

C 68/4                 EN                     Official Journal of the European Communities                                       16.3.2002
Appeal brought on 6 December 2001 by Procter &                                 at the relevant date and, if not, whether the difference is
Gamble Company against the judgment delivered on                               perceptible, rendering it apt to confer distinctive character
19 September 2001 by the Second Chamber of the Court                           on the Marks;
of First Instance of the European Communities in case
T-128/00 (1) between Procter & Gamble Company and
Office for Harmonisation in the Internal Market (Trade                   —     in failing to assess whether the specific pattern (speckles
                                                                               and square or triangular inlays in the centre and on the
                  Marks and Designs) (OHIM)
                                                                               upper surface of the tablet) was already part of the usual
                                                                               get-ups of the tablets on the market at the relevant date
                        (Case C-473/01 P)                                      and, if not, whether the difference is perceptible, rendering
                                                                               it apt to confer distinctive character on the Marks.
                          (2002/C 68/08)
                                                                         (1) OJ C 192, 8.7.2000, p. 25.
An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance
of the European Communities in case T-128/00 between
Procter & Gamble Company and Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM) was
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.              Action brought on 6 December 2001 by the Commission
                                                                         of the European Communities against the Hellenic
                                                                                                      Republic
The Appellant claims that the Court should:
                                                                                                  (Case C-475/01)
—     annul the judgment; insofar as the remainder of the
      action was dismissed;
                                                                                                   (2002/C 68/09)
—     order the OHIM to pay the costs both at first instance
      and on appeal.
                                                                         An action against the Hellenic Republic was brought before
                                                                         the Court of Justice of the European Communities on 6 Decem-
Pleas in law and main arguments                                          ber 2001 by the Commission of the European Communities,
                                                                         represented by Maria Kondou-Durande and Enrico Traversa,
                                                                         Legal Advisers.
The Appellant submits that the Court of First Instance erred in
the following respects:
                                                                         The Commission claims that the Court should:
—     in deeming it unnecessary to decide whether the distinc-
      tive character of the Mark should be assessed by reference
      to the date on which the application for registration is           —     declare that, by maintaining in force excise duty on ouzo
      filed or the date of actual registration;                                at a lower rate than that applied to other alcoholic
                                                                               beverages, the Hellenic Republic has failed to fulfil its
—     in holding that the level of attention given by the average              obligations under the first paragraph of Article 90 of the
      consumer to the shape and colours of washing machine                     EC Treaty;
      and dishwasher tablets is not high;
                                                                         —     order the Hellenic Republic to pay the costs.
—     in deeming it appropriate to ascertain whether the Marks
      applied for will enable the members of the public targeted
      to distinguish the products from those having a different
      trade origin when they come to select a product for
      purchase;                                                          Pleas in law and main arguments
—     in holding that the bevelled edges, slightly rounded
      corners or chamfered edges of the tablets are not likely to        Law No 2127/93 transposes Directive 92/83/EEC (1) into
      be perceived by the average consumer as a distinctive              Greek law. That Law sets the basic rate of excise duty at GRD
      feature of the shape claimed, capable of distinguishing it         per 100 litres of pure alcohol. However, Article 26 of the Law
      from other washing machine or dishwasher tablets and               provides for a 50 % reduction in the basic rate with regard to
      in failing to assess whether such features were already            ouzo. Thus, for that particular product the excise duty amounts
      part of the usual get up(s) of thetablets on the market            to only GRD per 100 litres of pure alcohol.