CELEX: C2003/124/43
Language: en
Date: 2003-05-24 00:00:00
Title: Case T-73/03: Action brought on 26 February 2003 by Bernard Zaoui, Lucien Zaoui and Déborah Stain, née Zaoui against the Commission of the European Communities

C 124/24              EN                          Official Journal of the European Union                                           24.5.2003
Action brought on 27 February 2003 by Henkel KGaA                         Decision of the Board of       Mr. Brutsaert’s appeal allowed in
against the Office for Harmonisation in the Internal                      Appeal:                        part. Application to register may
          Market (Trade Marks and Designs) (OHIM)                                                        proceed also in respect of the
                                                                                                         goods ‘cleaning, polishing, scour-
                                                                                                         ing and abrasive preparation’ in
                         (Case T-67/03)                                                                  Class 3. Mr. Brutsaert’s appeal
                                                                                                         dismissed for the remainder;
                                                                                                         Opponent’s appeal dismissed.
                        (2003/C 124/42)
                                                                          Pleas in law:                  —     misapplication of Arti-
                  (Language of the case: English)                                                              cle 43(2) and (3) of Regu-
                                                                                                               lation 40/94 (1). The appli-
                                                                                                               cant challenges the Board of
                                                                                                               Appeal’s findings in relation
An action against the Office for Harmonisation in the Internal                                                 to the issue of using and thus
Market (Trade Marks and Designs) (OHIM) was brought before                                                     maintaining entitlement to
the Court of First Instance of the European Communities on                                                     the national mark ‘CIDE’.
27 February 2003 by Henkel KgaA, Düsseldorf, Germany,
represented by Dr C. Osterrieth, lawyer, with an address for                                             —     misapplication of Arti-
service in Luxembourg. Koen Brutsaert was also a party to the                                                  cle 8(1)(b) of Regulation 40/
proceedings before the Board of Appeal.                                                                        94. The applicant challenges
                                                                                                               the Board of Appeal’s find-
                                                                                                               ings regarding the issue of
                                                                                                               similarity of goods.
The applicant claims that the Court should:
—     annul the decision of the First Board of Appeal of the
      OHIM of 17 December 2002 in the appeal proceedings                  (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
      No R 940/2001-1;                                                         Community trade mark (OJ 11, p. 1).
—     order the defendant to pay the costs.
Pleas in law and main arguments
Applicant for Com-            Koen Brutsaert
munity trade mark:
                                                                          Action brought on 26 February 2003 by Bernard Zaoui,
Community trade mark          Figurative mark ‘Professional               Lucien Zaoui and Déborah Stain, née Zaoui against the
sought:                       Hygiene CID lines’ for certain                       Commission of the European Communities
                              goods in Classes 1, 3 and 5 (appli-
                              cation No 506618)
                                                                                                     (Case T-73/03)
Proprietor of mark or         Henkel KGaA
sign cited in the oppo-
sition proceedings:                                                                                 (2003/C 124/43)
Mark or sign cited in         National marks ‘CIDE’ (for certain
opposition:                   goods in classes 1 and 5) and ‘CID’                            (Language of the case: French)
                              (in respect of certain goods in
                              Classes 1 and 3.
Decision of the Oppo-         Opposition upheld for part of the
sition Division:              contested goods, namely ‘bleach-
                              ing preparations and other sub-             An action against the Commission of the European Communi-
                              stances for laundry use; cleaning,          ties was brought before the Court of First Instance of the
                              polishing, scouring and abrasive            European Communities on 26 February 2003 by Bernard
                              preparation’ (Class 3). The appli-          Zaoui, residing in Combs-la-Ville (France), Lucien Zaoui,
                              cation for registration may pro-            residing in Netanya (Israel), and Déborah Stain, née Zaoui,
                              ceed for the remaining goods of             residing in Ramat Gan (Israel), represented by Jean Alex
                              the application.                            Buchinger, lawyer.
 ---pagebreak--- 24.5.2003              EN                        Official Journal of the European Union                                             C 124/25
The applicants claim that the Court should:                              Action brought on 3 March 2003 by Intech EDM B.V.
                                                                           against the Commission of the European Communities
—     find the defendant liable for the harm suffered by the
      applicants as a result of the attack on 27 March 2002 on                                     (Case T-74/03)
      the Park Hotel in Netanya (Israel);
—     order the defendant, in respect of the harm suffered by                                     (2003/C 124/44)
      the applicants, to pay the following amounts:
                                                                                            (Language of the case: German)
      —     to Lucien Zaoui, EUR 1 million in compensation for
            non-material damage;
      —     to Bernard Zaoui, EUR 1,5 million, in compensation           An action against the Commission of the European Communi-
            for non-material damage;                                     ties was brought before the Court of First Instance of the
                                                                         European Communities on 3 March 2003 by Intech EDM B.V.,
      —     to Déborah Stain, née Zaoui:                                 Lomm (Netherlands), represented by M. Karl, Rechtsanwalt.
            —    EUR 1 million in respect of bodily injury;              The applicant claims that the Court should:
            —    EUR 2 millions in respect of non-material               —     annul the Commission’s decision of 17 December 2002
                 damage;                                                       (Case COMP/E-2/37.667 — Special Graphite);
            —    an amount to be settled in the course of                —     in the alternative, reduce the fine imposed by Article 3(h)
                 proceedings for material damage.                              of the decision;
—     order the defendant to pay the costs.                              —     order the Commission to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The applicant distributes isostatically pressed special graphite,
The applicants are relatives of Mrs Zaoui, who died on                   but does not itself produce it. Its activity in the European
27 March 2002 when a Palestinian terrorist carried out an                special graphite market is based on a cooperation agreement
attack on a hotel in Israel. The applicants claim that the               between itself and Ibiden Co. Ltd., a Japanese producer
education in the Palestinian territories in the West Bank and in         of isostatic special graphite. The Commission accused the
the Gaza strip is the certain and direct cause of the attack             applicant, a former subsidiary of the latter and various
which cost Mrs Zaoui her life, since that education incites              producers of isostatic special graphite (including Ibiden) of
individuals to hatred and terrorism. They claim that the                 taking part in a continuing agreement and/or concerted
defendant participated financially in that form of education,            practice on the market for special graphite in the European
the content of which it was presumably aware of and on which             Community and the European Economic Area. According to
it could have an influence. According to the applicants, the             the Commission’s finding, the applicant participated from
defendant also infringed the provisions applicable to the                February 1994 to May 1997 at European and regional level.
financial support programmes (Articles 6 and 177(2) of the
EC Treaty), the principles of sound financial management, the
agreements entered into between the Communities and the
                                                                         The applicant argues that the Commission has wrongly
United Nations Relief and Works Agency for Palestinian
refugees (UNRWA), Article 3 of Regulation No 1488/96/EC                  classified it as an offender. In reality, at least for the period up
and Amendment No 177 to the 2002 EC General Budget. In                   to 26 September 1995, the applicant could only be classified
                                                                         as a helper of Ibiden. According to Article 15(2) of Regulation
that context, they claim that the liability of the Communities
has been incurred by virtue of the second paragraph of                   No 17, a helper cannot be punished with a fine. The applicant
                                                                         further maintains that the Commission ignored several mitigat-
Article 288 of the EC Treaty.
                                                                         ing circumstances, particularly the subsidiary role of the
                                                                         applicant, and the fact that it voluntarily ended its participation
                                                                         long before the other participants and long before the Com-
                                                                         mission first intervened.