CELEX: C2004/071/63
Language: en
Date: 2004-03-20 00:00:00
Title: Case T-15/04: Action brought on 14 January 2004 by Sandoz GmbH against the Commission of the European Communities

20.3.2004              EN                        Official Journal of the European Union                                            C 71/35
Action brought on 14 January 2004 by Alto de Casablanca,                 Decision of the Board of      Appeal rejected
S.A. against the Office for Harmonisation in the Internal                Appeal:
         Market (Trade Marks and Designs) (OHIM)
                                                                         Pleas in law:                 The applicant is represented by a
                                                                                                       registered patent agent and trade
                          (Case T-14/04)
                                                                                                       mark attorney, authorised to prac-
                                                                                                       tice both in the United Kingdom
                          (2004/C 71/62)                                                               and at a European level. The appli-
                                                                                                       cant claims that, on these
                                                                                                       grounds, its representative is also
(Language of the case to be determined pursuant to Article 131(2)                                      authorised to represent it before
of the Rules of Procedure-language in which the application was                                        the Court of First Instance of
                         submitted: English)                                                           the European Communities. In
                                                                                                       support of the substantive part
                                                                                                       of its application the applicant
                                                                                                       submits that the mark applied for
                                                                                                       did          not         contravene
An action against the Office for Harmonisation in the Internal
                                                                                                       Article 8 (1) (b), of Regulation 40/
Market (Trade Marks and Designs) (OHIM) was brought before
                                                                                                       94 (1) and the Office was mistaken
the Court of First Instance of the European Communities on
                                                                                                       to refuse registration.
14 January 2004 by Alto de Casablanca, S.A., Casablance,
(Chile), represented by A. W. Pluckrose, Chartered Patent
Attorney. Bodegas Julián Chivite, S.L. was also a party to the
proceedings before the Board of Appeal.                                  (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                             Community trade mark (OJ 11, p. 1).
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeals of the
      Office for Harmonisation in the Internal Market of
      4 November 2003;
—     direct the Office for Harmonisation in the Internal Market         Action brought on 14 January 2004 by Sandoz GmbH
      to proceed to register Community Mark Application                    against the Commission of the European Communities
      number 568337;
—     order payment of the Applicant’s costs.                                                     (Case T-15/04)
                                                                                                  (2004/C 71/63)
Pleas in law and main arguments
                                                                                           (Language of the case: English)
Applicant for the Com-         ALTO DE CASABLANCA S.A.
munity trade mark:
                                                                         An action against the Commission of the European Communi-
Community trade mark           Word mark ‘VERAMONTE’ for
                                                                         ties was brought before the Court of First Instance of the
sought:                        goods in class 33 (wine)
                                                                         European Communities on 14 January 2004 by Sandoz
                                                                         GmbH, Kundl, (Austria), represented by C. Thomas and
Proprietor of the right to     BODEGAS JULIAN CHIVITE S.L.               N. Dagg, Solicitors, and B. Oosting, lawyer.
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                             The applicant claims that the Court should:
Trade mark or sign             National marks ‘BEAMONTE’ and             —    annul the Commission decision, notified to the applicant
asserted by way of oppo-       ‘BODEGAS BEAMONTE’ for                         by letter dated 14 November 2003, not to proceed with
sition in the opposition       goods in class 33 (wines, spirits,             the decision for a marketing authorisation of Omnitrop
proceedings:                   liquors) and services in class 39              under Article 10(1)(a)(ii) of Directive 2001/83 and to
                               (goods transportation services)                send the CPMP opinion of 26 June 2003 back to the
                                                                              EMEA;
Decision of the Oppo-          Registration refused
sition Division:                                                         —    order the Commission to pay the applicants costs.
 ---pagebreak--- C 71/36                EN                         Official Journal of the European Union                                        20.3.2004
Pleas in law and main arguments                                           —     The scientific rigour of comparability exercises is clear
                                                                                from the CPMP’s 2001 Note for Guidance and from the
                                                                                CPMP’s review of OMNITROP.
The context of the contested Decision was an application for              —     The use of comparability studies is therefore fully consist-
marketing authorisation made to the European Agency for the                     ent with the objective of safeguarding public health, and
Evaluation of Medicinal Products in 2001, in accordance with                    certainly does not represent any relaxation of health
scientific advice from the Committee for Proprietary Medicinal                  protection standards.
Products (CPMP), which issued a favourable Opinion in June
2003. However, the Commission decided not to proceed with
                                                                          —     The CPMP consistently opposed the use of the essential
a decision on the authorisation of the medicinal product in
                                                                                similarity route.
question, OMNITROP, under Article 10(1)(a)(ii) and Annex I
of the Directive 2001/83 of the European Parliament and
Council of 6 November 2001, on the Community Code
relating to medicinal products for human use (1), on the basis            (1) OJ L 311 of 28.11.2001, p. 67.
that the performance of ‘comparability studies’ implied that              (2) Case C-440/93 [1995] ECR I-2851.
the legal conditions for the application of the procedure were
not met. Hence, the dispute between the applicant and the
Commission relates to the interpretation of Article 10(1)(a)(ii)
and Annex I of this Directive, which govern ‘bibliographical
applications’ based on the well-established medicinal use of
the product concerned.
The applicant considers in this respect that the defendant’s              Action brought on 15 January 2004 by Arcelor S.A.
position conflicts with the clear wording of the applicable               against the European Parliament and the Council of the
legislation. It would also conflict with the scientific view of the                               European Union
body established to provide the Community with expertise in
these matters, the CPMP.
                                                                                                   (Case T-16/04)
Accordingly, the applicant submits, as a single plea, the                                          (2004/C 71/64)
infringement of Article 10(1)(a)(ii) and Annex I, mainly
indent d) of Sections I of its Parts 3 and 4, for the following
grounds:                                                                                     (Language of the case: English)
—     Annex I to Directive 2001/83 expressly requires the
      CPMP to make a judgment on whether two products are
      similar, and this necessarily requires the applicant to             An action against the European Parliament and the Council of
      support its explanations with comparability studies.                the European Union was brought before the Court of First
                                                                          Instance of the European Communities on 15 January 2004
                                                                          by Arcelor S.A., Luxembourg, represented by Dr W. Deselaers,
—     The rules established by the Scotia judgment (2), as                Dr Bernd Meyring and Dr B. Schmitt-Rady, lawyers.
      invoked, in the Commission’s Decision, have previously
      been reversed by the Commission’s own legislation.
                                                                          The applicant claims that the Court should:
—     The Commission has publicly rejected the ‘extremely
      rigid’ approach of the Scotia judgment and called for a             —     Declare Articles 4, 12(3) and 6(2e), 9, 16(2), (3) and (4),
      ‘flexible’ approach to Article 10(1)(a)(ii) of the Directive              in conjunction with Article 2, Annex I and Annex III,
      2001/83.                                                                  No. 1, of Directive 2003/87/EC of the European Parlia-
                                                                                ment and of the Council of 13 October 2003 establishing
                                                                                a scheme for greenhouse gas emission allowance trading
—     The principles governing comparability exercises have                     within the Community and amending Council Directive
      been established by the Communty’s centre of expertise                    96/61 EC void to the extent that these provisions apply
      on biotechnology-derived products (the EMEA) and the                      to installations for the production of pig iron or steel
      exercise will always be carried out under the EMEA’s                      (primary or secondary fusion) including continuous cast-
      supervision.                                                              ing, with a capacity exceeding 2,5 tonnes per hour;