CELEX: C2002/109/94
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-7/02: Action brought on 14 January 2002 by Zapf Creation AG against the Office for Harmonisation in the Internal Market

4.5.2002              EN                     Official Journal of the European Communities                                      C 109/47
Pleas in law and main arguments                                         European Communities on 14 January 2002 by Zapf Creation
                                                                        AG, represented by Mr Axel Kockläuner of Meissner, Bolte &
                                                                        Partner, Munich (Germany).
The applicants are both part of the Omega group, which has a
substantial interest in aviation and the provision of such
services both within and without the European Community.                A further party to the proceedings before the Board of appeal
The Omega group has the intention of constructing and                   was Jesmar S.A.
operating a second terminal at Dublin airport which will
provide direct competition to the present terminal operated by
Aer Rianta, the Irish state-owned company that owns and
operates Dublin, Cork and Shannon airports.                             The applicant claims that the Court should:
                                                                        —     annul the decision of the First Board of Appeal of
By letter dated 4 December 1998, the applicants lodged a                      17 October 2001 in Case R 1123/2000-1 relating to
complaint with the Commission concerning alleged State aid                    Opposition Proceedings no. B 68587 and Community
in favour of Aer Rianta. It was alleged that aid had been                     trade mark application no. 50252 ‘Colette Zapf Creation’
granted, in particular, by a transfer of assets from the Minister
of Finance to Aer Rianta at a significant undervalue. On
5 October 2001, the Commission took a decision on the
complaint. In the second indent of Part 6 of this decision, the
Commission stated that the contested transfer of assets was             Pleas in law and main arguments
not a grant of aid.
                                                                        Applicant for the Com-        Zapf Creation AG
The applicants challenge the legality of this decision on three         munity trade mark:
grounds:
                                                                        The Community trade           The figurative mark ‘Colette Zapf
                                                                        mark concerned:               Creation’ for certain goods in
—     the Commission should have proceeded to open the                                                class 28
      formal investigation procedure pursuant to Article 4(4)
      of Regulation (EC) No 659/1999;
                                                                        Proprietor of the right to    Jesmar S.A.
                                                                        the trade mark or sign
—     the Commission misdirected itself as a matter of law in           asserted by way of oppo-
      determining that the transfer of assets at an undervalue          sition in the opposition
      did not constitute State aid within the meaning of                proceedings:
      Article 87(1) EC Treaty;
                                                                        Trade mark or sign            The Spanish word mark ‘Colette’
—     the Commission gave an inadequate statement of reasons            asserted by way of oppo-      for certain goods in class 28
      contrary to the requirements of Article 253 EC Treaty.            sition in the opposition
                                                                        proceedings:
                                                                        Decision of the Oppo-         Rejection of the opposition by
                                                                        sition Division:              Jesmar S.A.
                                                                        Decision of the Board of      Admission of the appeal lodged
                                                                        Appeal:                       by Jesmar S.A.
Action brought on 14 January 2002 by Zapf Creation AG
against the Office for Harmonisation in the Internal                    Grounds of claim:             Violation of Article 43, section 2,
                             Market                                                                   of Regulation 40/94 (1) since there
                                                                                                      was no satisfactory proof of the
                                                                                                      genuine use of the opposing
                          (Case T-7/02)                                                               trademark and violation of
                                                                                                      Article 8, Section 1 b) of Regu-
                                                                                                      lation 40/94 since there is no
                        (2002/C 109/94)                                                               danger of confusion.
                  (Language of the case: English)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the