CELEX: C2001/227/40
Language: en
Date: 2001-08-11 00:00:00
Title: Case T-91/01: Action brought on 23 April 2001 by BioID AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 227/20               EN                     Official Journal of the European Communities                                     11.8.2001
Action brought on 23 April 2001 by Christine Janusch                     Action brought on 23 April 2001 by BioID AG against
              against the European Central Bank                          the Office for Harmonisation in the Internal Market
                                                                                           (Trade Marks and Designs)
                          (Case T-90/01)
                                                                                                  (Case T-91/01)
                         (2001/C 227/39)
                                                                                                 (2001/C 227/40)
                   (Language of the case: German)
                                                                                           (Language of the case: German)
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities           An action against the Office for Harmonisation in the Internal
on 23 April 2001 by Christine Janusch, residing in Dreieich              Market (Trade Marks and Designs) was brought before the
(Germany), represented by Boris Karthaus, Rechtsanwalt, with             Court of First Instance of the European Communities on
an address for service in Luxembourg.                                    23 April 2001 by BioID AG, of Berlin (Germany), represented
                                                                         by Axel Nordemann, Lawyer.
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
—     annul the decision of the defendant addressed to the
      applicant of 5 February 2001;                                      —     annul the decision of the Second Board of Appeal of the
                                                                               Office for Harmonisation in the Internal Market (Trade
—     order the defendant to make a number of payments plus                    Marks and Designs) of 20 February 2001 (Appeal
      interest to the applicant;                                               R 538/1999-2) and the decision of the examiner Robert
                                                                               Kliyn Brinkema of the Office for Harmonisation in the
—     order the defendant to pay the costs.                                    Internal Market (Trade Marks and Designs) of 25 June
                                                                               1999 (concerning application file number 873943);
                                                                         —     order the defendant to admit for publication trade mark
Pleas in law and main arguments                                                873943, logo: BioID.®
                                                                         —     order the defendant to pay the costs.
The applicant was employed by the defendant from July 1998
and assigned to salary band C. In August 2000, she applied for
confirmation of her classification and of assignment to salary
band D, with retrospective effect from 1 January 2000. She               Pleas in law and main arguments
left her employment with the defendant in September 2000.
                                                                         Applicant for the Com-        BioID AG (formerly D.C.S. Dialog
On 28 November 2000, the Executive Board of the defendant                munity trade mark:            Communication Systems AG)
decided to carry out a reclassification of certain posts, whereby
the applicant’s post of ‘Administrative Assistant in the Protocol        The trade mark applied        the word mark and figurative
and Conferences Division’ was assigned to salary band D as               for:                          mark BioID.®
‘Meeting and Conference Assistant’.
                                                                         Goods or services con-        goods and services in Classes 9,
                                                                         cerned:                       38 and 42
By a letter of 5 February 2001, the defendant decided that,
although the applicant’s post as ‘Meeting and Conference                 Decision        contested     refusal of registration by the
Assistant’ had been assigned to salary band D, the defendant             before the Board of           examiner
was not in a position to make the applicant’s new classification         Appeal:
in salary band D retrospective, as the Executive Board had
decided not to apply the decision of 28 November 2000                    Decision of the Board of      dismissal of the applicant’s appeal
retrospectively to employees who had left the defendant in the           Appeal:
meantime.
                                                                         Grounds of claim:             — misapplication of Article
                                                                                                           7(1)(c) of Regulation (EC)
The applicant makes three pleas in law against the decision,
                                                                                                           No 40/94 (1)
namely that it was not sufficiently reasoned, infringed the
general principle of equal treatment, and was contrary to the                                          — the trade mark applied for
principles of good faith and fair dealing.                                                                 is, simply on account of its
                                                                                                           graphic configuration, not a
                                                                                                           descriptive indication and it
                                                                                                           has distinctive and indepen-
                                                                                                           dent graphics
 ---pagebreak--- 11.8.2001              EN                     Official Journal of the European Communities                                      C 227/21
                               — the verbal element contained            Action brought on 27 April 2001 by Mystery Drinks
                                   in the trade mark applied for         GmbH against the Office for Harmonisation in the
                                   is not in itself subject to any                Internal Market (Trade Marks and Designs)
                                   absolute ground for refusal
                               — there is no ground for refusal                                   (Case T-99/01)
                                   on the basis of a lack of dis-
                                   tinctiveness.
                                                                                                 (2001/C 227/42)
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).                           (Language of the case: to be determined in accordance with
                                                                         Article 131(2) of the Rules of Procedure. Language in which the
                                                                                          application was drafted: German)
                                                                         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
                                                                         27 April 2001 by Mystery Drinks GmbH, of Epperthausen
Action brought on 30 April 2001 by A. Seisenbacher                       (Germany), represented by Dr Thomas Jestaedt, Dr Verena von
Gesellschaft m.b.H. against the Commission of the Euro-                  Bomhard and Dr Andreas Renck, lawyers. A further party
                       pean Communities                                  before the Board of Appeal was Karlsberg Brauerei KG Weber,
                                                                         of Homburg (Germany).
                          (Case T-93/01)
                                                                         The applicant claims that the Court should:
                         (2001/C 227/41)                                 —     annul the decision of Third Board of Appeal of the Office
                                                                               for Harmonisation in the Internal Market (Trade Marks
                                                                               and Designs) of 12 February 2001 (R 251/2000-3);
                   (Language of the case: German)                        —     order the defendant to pay the costs.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Pleas in law and main arguments
European Communities on 30 April 2001 by A. Seisenbacher
Gesellschaft m.b.H., represented by Dr Johannes Stieldorf,               Applicant for the Com-        the applicant
Lawyer.                                                                  munity trade mark:
The applicant claims that the Court should:                              Community trade mark          the figurative mark ‘MYSTERY’ for
                                                                         applied for:                  goods in Classes 29 and 30 and
—     order the European Community to pay the applicant the                                            ‘non-alcoholic drinks with the
      sum of ECU 59 694,44 together with interest at 13 %                                              exception of non-alcoholic beer’
      from 20 October 1998 and the costs of the case.                                                  in Class 32.
                                                                         Proprietor of the right       Karlsberg Brauerei KG Weber
Pleas in law and main arguments                                          to a trade mark or sign
                                                                         asserted in the oppo-
Following an invitation to tender concerning the renovation              sition proceedings:
of the European Community building in Kiev, a contract was
concluded between Ost-Invest und Bauprojektmanagement                    Right to a trade mark or      the word mark ‘MIXERY’ for ‘beer
GmbH. and the Commission. On account of the financial                    sign asserted:                and drinks containing beer’ in
situation of that company, the applicant as general contractor                                         Class 32
was to fulfil that contract vis-à-vis the Commission.
                                                                         Decision of the Oppo-         dismissal of the opposition
                                                                         sition Division:
After the restored building had been handed over, the applicant
requested settlement of its final account of ECU 59 694,44.              Decision of the Board of      cancellation of the decision of the
Following investigations the applicant discovered that payment           Appeal:                       Opposition Division, in so far
of ECU 55 000,00 had been made to another company, a fact                                              as the likelihood of confusion
which is, however, immaterial to the relationship between the                                          between the opposing mark and
applicant and the defendant. The applicant brings an action                                            goods in Class 32, namely ‘non-
pursuant to Article 238 EC and demands payment of the final                                            alcoholic drinks with the excep-
account.                                                                                               tion of non-alcoholic beer’,
                                                                                                       referred to in the application was
                                                                                                       denied, and dismissal of the
                                                                                                       appeal as to the remainder.