CELEX: C2002/169/29
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-150/02 P: Appeal brought on 25 April 2002 by Streamserve Inc. against the judgment delivered on 27 February 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-106/00 between Streamserve Inc. and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

C 169/16                EN                   Official Journal of the European Communities                                       13.7.2002
Pleas in law and main arguments                                               in the Internal Market (Trade Marks and Designs) did not
                                                                              infringe Article 7 (1) (c) of Council Regulation (EC)
                                                                              No 40/94 of 20 December 1993 on the Community
The judgment of the Court of First Instance infringed                         trade mark (2) in adopting its decision of 28 February
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well                2000 (Case R 423/1999-2) with the exception as regards
as the ‘right to sound administration’ and the Commission’s                   goods in the categories ‘manuals and publications’;
‘general duty of supervision’, in so far as it inferred that
individuals have a right to have their complaint under                  2.    for the rest, annul the decision of the Second Board of
Article 90 of the EC Treaty (now Article 86 EC) dealt with and                Appeal of the Office for Harmonization in the Internal
a corresponding right of action. Moreover, it erroneously                     Market (Trade Marks and Designs) of 28 February 2000
inferred that complaints by individuals in the context of                     (Case R 423/1999-2);
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of           3.    order the Office for Harmonization in the Internal Market
First Instance has at any rate infringed Article 90(3). If so, and            (Trade Marks and Designs) to pay the costs both at first
in so far as it based its conclusions thereon it has also infringed           instance and on appeal.
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.                                                       Pleas in law and main arguments
(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v
                                                                        The Appellant maintains that the Court of First Instance
    Commission [2002] ECR II-0000.                                      misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
                                                                        held that the aforementioned article prevents the signs or
                                                                        indications referred to in that provision from being reserved
                                                                        to one undertaking alone because they have been registered as
                                                                        a mark and that the provision thus pursues an aim which is in
                                                                        the public interest, namely that such signs or indications may
                                                                        be freely used by all.
Appeal brought on 25 April 2002 by Streamserve Inc.                     In the Appellant’s view the criteria applied by the Court of
against the judgment delivered on 27 February 2002 by                   First Instance in the application of Article 7 (1) (c) to the facts
the Fourth Chamber of the Court of First Instance of                    of the case are too severe.
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
    Internal Market (Trade Marks and Designs) (OHIM)                    (1) OJ C 176, 24.6.2000, p. 29.
                                                                        (2) OJ L 11, 14.1.1994, p. 1.
                         (Case C-150/02 P)
                          (2002/C 169/29)
An appeal against the judgment delivered on 27 February                 Action brought on 26 April 2002 by the Commission
2002 by the Fourth Chamber of the Court of First Instance               of the European Communities against the Republic of
of the European Communities in case T-106/00 between                                                  Austria
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM), was
                                                                                                (Case C-155/02)
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented                                 (2002/C 169/30)
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.
                                                                        An action against the Republic of Austria was brought before
The Appellant claims that the Court should:                             the Court of Justice of the European Communities on 26 April
                                                                        2002 by the Commission of the European Communities,
1.    annul the judgment of the Court of First Instance of              represented by Josef Christian Schieferer, of its Legal Service,
      27 February 2002 in case T-106/00, Streamserve Inc. v.            with an address for service in Luxembourg at the office of Luis
      OHIM (‘STREAMSERVE’), in so far as it found that the              Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
      Second Board of Appeal of the Office for Harmonization            Kirchberg, Luxembourg.