CELEX: C2002/233/52
Language: en
Date: 2002-09-28 00:00:00
Title: Case T-216/02: Action brought on 17 July 2002 by Fieldturf Inc. against the Office for Harmonization in the Internal Market (Trademarks and Designs)

28.9.2002                EN                     Official Journal of the European Communities                                      C 233/29
applicant submits that in doing so, the Commission has                     Action brought on 17 July 2002 by Fieldturf Inc. against
disregarded several procedural rules set forth in Council                  the Office for Harmonization in the Internal Market
Directive 76/768/EEC (2), as last amended by Commission                                       (Trademarks and Designs)
Directive 2000/41/EC ( 3), which the contested Directive pur-
ports to implement.
                                                                                                   (Case T-216/02)
                                                                                                   (2002/C 233/52)
It alleges that the procedural safeguards set out in the
Cosmetics Directive and in the Commission Decision estab-
lishing the Scientific Committee on Cosmetic Products and                                     (Language of the case: English)
Non Food Products intended for Consumers (4) have been
violated. By not adequately informing the applicant of the
ongoing deliberations and the status of the Committee’s
opinion on acrylamide, by disrespecting procedural safeguards
aimed at preserving the impartiality of the decision-making,               An action against the Office for Harmonization in the Internal
by using scientific standards that are at odds with prevailing             Market (Trademarks and Designs) was brought before the
EU decisions, by manifestly misinterpreting the data submitted             Court of First Instance of the European Communities on
by the applicant and by not adequately allowing the applicant              17 July 2002 by Fieldturf Inc. Montreal (Canada), represented
to state its case and express its view on studies co-authored by           by Dr Patrick Baronikians at Schwarz Kurtze Schniewind
it, the Commission has violated the applicant’s rights of                  Kelwing Wicke in Munich, Germany
defence in a way which affects the validity of the contested
Directive. Furthermore, the defendant omitted to notify the
applicant of the Directive, so that the legislative process is
affected by a procedural deficiency which necessarily affects its          The applicant claims that the Court should:
validity.
                                                                           —     annul the decision of the First Board of Appeal of
                                                                                 the Office for Harmonisation in the Internal Market
                                                                                 (Trademarks and Designs) of 15 May 2002 (Case R 462/
                                                                                 2001-1) concerning the registration of the trademark
The applicant submits that the contested Directive improperly                    ‘LOOKS LIKE GRASS... FEELS LIKE GRASS... PLAYS LIKE
includes polyacrylamides in Annex III to the Cosmetics                           GRASS’ and direct that the claimed mark will be registered
Directive based on a calculation of cancer potency which is at                   for all the goods and service applied for;
odds with the more specific and prevailing review of acrylami-
de under the EU chemicals legislation. The contested Directive             —     order the Office for Harmonisation in the Internal
also infringes a series of well established principles of Com-                   Market (Trademarks and Designs) to pay the costs of the
munity law, e.g. the duty to state reasons, the principle                        applicant.
of proportionality, the principle of uniform application of
Community law and the principle of equal treatment. Finally,
the Commission did not consider all interests at stake and
ignored the recent scientific findings.
                                                                           Pleas in law and main arguments
( 1) OJ L 102, p. 19.                                                      The trade mark con-           The word mark ‘LOOKS LIKE
( 2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-          cerned:                       GRASS... FEELS LIKE GRASS...
     mation of the laws of the Member States relating to cosmetic                                        PLAYS LIKE GRASS’ — appli-
     products (OJ L 262, p. 169).                                                                        cation No 1712918
( 3) Commission Directive 2000/41/EC of 19 June 2000 postponing
     for a second time the date after which animal tests are prohibited
     for ingredients or combinations of ingredients of cosmetic            Goods or service con-         Goods and services in Classes 27
     products (OJ L 145, p 25).                                            cerned:                       and 37 (i.a. synthetic surfaces for
( 4) Commission Decision 97/579/EC of 23 July 1997 setting up                                            athletic activities)
     Scientific Committees in the field of consumer health and food
     safety (OJ L 237, p. 18).
                                                                           Decision         contested    Refusal of registration by the
                                                                           before the Board of           examiner
                                                                           Appeal:
                                                                           Decision of the Board of      Dismissal of the appeal
                                                                           Appeal:
 ---pagebreak--- C 233/30               EN                       Official Journal of the European Communities                                      28.9.2002
Grounds of claim:              —      The trademark applied for            Pleas in law and main arguments
                                      satisfies   the      minimum
                                      requirements for a distinc-
                                      tive character (Article 7(1)(b)      In the present action, the applicant seeks the annulment of the
                                      of Regulation (EC) No 40/            jury’s decision of 31 July 2001 in competition COM/A/6/01
                                      94 (1)).                             in so far as the applicant was thereby refused admission to that
                                                                           competition on the ground that she exceeded the age limit set
                               —      The contested decision is            in the notice of competition.
                                      contrary to jurisprudence of
                                      the Court.
                                                                           In support of her claim, the applicant alleges:
( 1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-            —     that the Commission made a manifest error of assessment
     munity trade mark (OJ L 11, p. 1).                                          in that, in her appeal, the applicant was not seeking a
                                                                                 declaration that one of the conditions stipulated in the
                                                                                 notice of competition, namely the condition regarding
                                                                                 age, was illegal, but a declaration that the jury’s decision
                                                                                 refusing her admission to the competition was illegal;
                                                                           —     infringement of the principle of equality, enshrined
                                                                                 in Article 13 of the EC Treaty, which prohibits all
                                                                                 discrimination based on age;
Action brought on 23 July 2002 by Olga Lutz Herrera                        —     infringement of Article 6 of the Charter of Fundamental
   against the Commission of the European Communities                            Rights of the European Union and Article 14 of the
                                                                                 European Convention on Human Rights.
                         (Case T-219/02)
                         (2002/C 233/53)
                   (Language of the case: Spanish)                         Action brought on 23 July 2002 by Heron Robotunits
                                                                           GmbH against the Office for Harmonisation in the
                                                                                     Internal Market (Trade Marks and Designs)
An action against the Commission of the European Communi-                                           (Case T-222/02)
ties was brought before the Court of First Instance of the
European Communities on 23 July 2002 by Olga Lutz Herrera,                                          (2002/C 233/54)
residing in Brussels, represented by D. Ramón Garcia-Gallardo,
Gil Fournier and D. Javier Guillén Carra, lawyers.
                                                                                              (Language of the case: German)
The applicant claims that the Court should:
                                                                           An action against the Office for Harmonisation in the Internal
—     annul the Commission’s decision refusing the applicant’s             Market (Trade Marks and Designs) was brought before the
      application to take part in competition COM/A/6/01;                  Court of First Instance of the European Communities on
                                                                           23 July 2002 by Heron Robotunits GmbH, of Lustenau
—     overturn the dismissal of the administrative appeal against          (Austria), represented by M. Bergermann, Lawyer.
      the refusal of the applicant’s application to take part in
      the said competition;
                                                                           The applicant claims that the Court should:
—     order such other relief as the Court may think appropriate           —     annul the decision of the First Board of Appeal of the
      so that the Commission fulfils its obligations under                       Office for Harmonisation in the Internal Market (Trade
      Article 233 EC and, specifically, conducts a fresh examin-                 Marks and Designs) of 6 May 2002 (Ref: R 1095-2000-
      ation of appeal No 486/01;                                                 1);
—     order the defendant to pay the costs.                                —     order the defendant to pay the costs.