CELEX: C2000/063/53
Language: en
Date: 2000-03-04 00:00:00
Title: Case T-332/99: Action brought on 24 November 1999 by Paul Jestädt against the Council of the European Union and the Commission of the European Communities

4.3.2000              EN                     Official Journal of the European Communities                                        C 63/27
Action brought on 24 November 1999 by Paul Jestädt                      Action brought on 26 November 1999 by Henkel KGaA
against the Council of the European Union and the                       against the Office for Harmonisation in the Internal
         Commission of the European Communities                                       Market (Trade Marks and Designs)
                        (Case T-332/99)
                                                                                                (Case T-335/99)
                         (2000/C 63/53)
                                                                                                 (2000/C 63/54)
                  (Language of the case: German)
An action against the Council of the European Union and the                               (Language of the case: German)
Commission of the European Communities was brought
before the Court of First Instance of the European Communities
                                                                        An action against the Office for Harmonisation in the Internal
on 24 November 1999 by Paul Jestädt, of Grossenlüder
                                                                        Market (Trade Marks and Designs) was brought before the
(Federal Republic of Germany), represented by Rainer Seimetz,
                                                                        Court of First Instance of the European Communities on
Rechtsanwalt, of Wälchtersbach (Federal Republic of Ger-
                                                                        26 November 1999 by Henkel KGaA, of Düsseldorf (Germ-
many), with an address for service in Luxembourg at the
                                                                        any), represented by Holger Friedrich Wissel and Christian
Chambers of François Jacques, 51 Rue Albert ler.
                                                                        Osterrieth, Rechtsanwälte, of Messrs Pünder, Volhard, Weber
                                                                        & Axter, Düsseldorf (Germany), with an address for service in
The applicant claims that the Court should:                             Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue.
(a) order the defendants to pay to him DM 67 522,36 together
    with interest from 1 July 1985;                                     The applicant claims that the Court should:
(b) order the defendants to pay the costs.
                                                                        (1) annul the decision adopted on 21 September 1999 by the
                                                                            Third Board of Appeal of the Office for Harmonisation in
                                                                            the Internal Market in the appeal proceedings (R
Pleas in law and main arguments
                                                                            70/1999-3) concerning Community trade mark regis-
                                                                            tration application No 716 831;
The applicant is a milk producer in Germany. He claims
damages in a sum equivalent to certain rates of compensation,
specified in detail, which he alleges to have been unlawfully           (2) order the Office for Harmonisation in the Internal Market
withheld from him in respect of the period from 1 July 1985                 to pay the costs.
to 1 March 1993. He bases his claim on the argument that he
has been prevented, on account of the unlawful failure to take
so-called ‘SLOM III’ farmers into account in the Community              Pleas in law and main arguments
milk quota rules, from producing milk following the expiry of
the non-marketing period relating to the leased land taken
over by him. By analogy with the judgment of the Court of               The trade mark con-           Three-dimensional mark using
First Instance of the European Communities in Joined Cases              cerned:                       the colours white and red —
T-195/94 and T-202/94, a compensation offer has been made                                             application No 716 381
to the applicant in respect of the period from 9 February 1993.
The European Commission has rejected any claims in excess
of that, relying on the limitation provision contained in               Goods or service con-         Class 3, washing and dish-wash-
Article 43 of the EC Statute of the Court of Justice of the             cerned:                       ing detergent in tablet form
European Communities.
                                                                        Decision        contested     Refusal of registration by the
                                                                        before the Board of           examiner
By the present action, the applicant is contesting the determi-
                                                                        Appeal:
nation of the commencement of the compensation period. He
maintains that he could not have filed his claims at an earlier
point in time, since an application made in that regard would           Grounds of claim:             — Infringement of Article 7(1)(b)
not have been certain of success. It was not until a decision —                                           of Regulation (EC) No 40/94
contested by the applicant — had been delivered by the
                                                                                                      — Misuse        of    discretionary
Verwaltungsgericht Kassel that he could assume that he was
                                                                                                          powers
entitled to a SLOM III reference quantity. Following the
delivery of that decision, he lodged his claims without delay.                                        — Infringement of procedural
Consequently, his action cannot be opposed on the ground of                                               law
his having previously refrained from filing an application on
account of its having no prospect of success.