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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.
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.