CELEX: C2004/035/19
Language: en
Date: 2004-02-07 00:00:00
Title: Case T-379/03: Action brought on 17 November 2003 by Peek & Cloppenburg KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 35/12                 EN                        Official Journal of the European Union                                          7.2.2004
Pleas in law and main arguments                                           The applicant claims that the Court should:
                                                                          —     annul the decision of the Fourth Board of Appeal of the
By the contested decision the Commission decided that                           Office for Harmonisation of 27 August 2003 in Case
Germany’s measure to promote the use of insulating materials                    R 105/2002-4;
produced from renewable raw materials is to be considered
compatible with the EC Treaty. The Commission reached this                —     order the Office to pay the costs.
decision on the basis that, although the measure constitutes
aid, it is, under Article 87(3)(c) EC, compatible with the EC
Treaty since the promoted insulating materials produced from
renewable raw materials clearly have advantages for the
environment over ‘traditional’ insulating materials.                      Pleas in law and main arguments
                                                                          Community trade mark          Word mark ‘Cloppenburg’ —
The applicant submits that the decision infringes essential               sought:                       Application No 1920685 in
procedural requirements. The Commission should have                                                     respect of Class 35 — retail trade
initiated the preliminary examination procedure in accordance                                           services.
with Article 88(2) EC and Article 4(4) of the regulation on
State aid procedure, since it encountered objectively serious             Decision         contested    Examiner’s refusal to register.
difficulties in assessing the measure.                                    before the Board of
                                                                          Appeal:
Furthermore, the decision infringes Article 87 EC. The Com-               Decision of the Board of      Dismissal    of   the   applicant’s
mission’s decision that the measure is compatible with the                Appeal:                       appeal.
common market under Article 87(3)(c) EC because of clear
advantages for the environment was based upon insufficient                Pleas in law:                 Infringement of Article 7(1)(c) of
findings of fact.                                                                                       Regulation No 40/94 (1).
Finally the applicant claims that the decision unjustifiably              (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
disadvantages those insulating materials designated by the                    Community trade mark (OJ 1994 L 11, p. 1).
Commission as ‘traditional’, especially mineral-based insulating
materials, but also insulating materials produced from renew-
able raw materials which do not carry the quality mark
‘natureplus’. The decision thus infringes the principles of
proportionality and non-discrimination and therefore infringes
fundamental principles of Community law.
                                                                          Action brought on 18 November 2003 by Miles Hand-
                                                                          elsgesellschaft International mbH against the Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
                                                                                                       Designs)
Action brought on 17 November 2003 by Peek & Clop-                                                 (Case T-385/03)
penburg KG against the Office for Harmonisation in the
         Internal Market (Trade Marks and Designs)
                                                                                                    (2004/C 35/20)
                         (Case T-379/03)                                  (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                          (2004/C 35/19)                                                          submitted: German)
                   (Language of the case: 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
An action against the Office for Harmonisation in the Internal            18 November 2003 by Miles Handelsgesellschaft International
Market (Trade Marks and Designs) was brought before the                   mbH, Norderstedt (Germany), represented by A. Deutsch,
Court of First Instance of the European Communities on                    lawyer. Biker Miles Motorrad Handels- und Vertriebsgesell-
17 November 2003 by Peek & Cloppenburg KG, Düsseldorf                     schaft mbH, Berlin, was also a party to the proceedings before
(Germany), represented by U. Hildebrandt, lawyer.                         the Board of Appeal.