CELEX: C2004/059/54
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-4/04: Action brought on 5 January 2004 by R.K. Achaiber Sing against the Commission of the European Communities and Council of the European Union

C 59/34               EN                        Official Journal of the European Union                                         6.3.2004
—     uphold Decision No 2880/2002 of 27 September 2002                 Action brought on 5 January 2004 by R.K. Achaiber Sing
      of the Opposition Division;                                       against the Commission of the European Communities
                                                                                      and Council of the European Union
—     require OHIM to refuse the CTM Application;
                                                                                                    (Case T-4/04)
—     order Spa Monopole and/or OHIM to (a) bear the costs
      of the Opposition proceedings (b) the proceedings before
                                                                                                   (2004/C 59/54)
      the Board of Appeal, and (c) the costs of these proceed-
      ings.
                                                                                            (Language of the case: Dutch)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
                                                                        ties and Council of the European Union was brought before
Applicant for the Com-       S.A. Spa Monopole N.V.                     the Court of First Instance of the European Communities on
munity trade mark:                                                      5 January 2004 by R.K. Achaiber Sing, residing in Leiden
                                                                        (Netherlands), represented by J.G.G. Wilgers.
The Community trade          The figurative mark ‘KINJI by SPA’
mark concerned:              for goods in Classes 29 and 32
                             (e.g. fruit pulp and mineral and           The applicant claims that the Court should:
                             aerated waters and other non-
                             alcoholic drinks containing fruit          1.    Primarily, declare that Decision 2000/666/EC contains a
                             juice)                                           measure having an equivalent effect to a quantitative and
                                                                              qualitative restriction on imports between Member States
Proprietor of the right to   The applicant                                    of the World Trade Organisation and that this decision is
the trade mark or sign                                                        at variance with Article 131 of the EEC Treaty, with the
asserted by way of oppo-                                                      result that it is null and void;
sition in the opposition
proceedings:                                                            2.    Primarily and in the alternative, order the European
                                                                              Community to pay compensation in respect of the
Trade mark or sign           The Community trade mark ‘KIN-                   damage, to be quantified, which the applicant has
asserted by way of oppo-     NIE’ (No 427 237) for goods                      incurred as a result of the obligations arising under
sition in the opposition     in Class 32 (Beers; non-alcoholic                Decision 2000/666/EC;
proceedings:                 drinks; preparations for making
                             beverages)                                 3.    Order the Community to pay the costs of the proceedings.
Decision of the Oppo-        Rejection of the trade mark
sition Division:             application
                                                                        Pleas in law and main arguments
Decision of the Board of     Annulment of the Decision of the
Appeal:                      Opposition Division and rejection
                             of the opposition                          The applicant imports live birds from non-member countries
                                                                        and states that he is obliged under the contested decision to
Grounds of claim:            —     Violation of Article 8 (1)(b)        incur costs for the establishment of a quarantine area. He states
                                   of Regulation (EC) No 40/            further that, as he has recently discovered, he is obliged to
                                   94;                                  incur further costs by reason of the national provisions giving
                                                                        effect to the contested decision.
                             —     Breach of Article 73 of Regu-
                                   lation (EC) 40/94;
                                                                        The applicant submits that the contested decision is at
                             —     Likelihood of confusion on           variance with the Agreement establishing the World Trade
                                   the part of the public in all,       Organisation, and in particular with Articles 2(2) and 3 of the
                                   or alternatively in a signifi-       Agreement on the Application of Sanitary and Phytosanitary
                                   cant proportion of territories       Measures. In the applicant’s view, the contested decision
                                   within the European Com-             constitutes a hidden barrier to trade which makes commerce
                                   munity.                              in live, non-protected birds practically impossible.