CELEX: C2001/227/41
Language: en
Date: 2001-08-11 00:00:00
Title: Case T-93/01: Action brought on 30 April 2001 by A. Seisenbacher Gesellschaft m.b.H. against the Commission of the European Communities

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.