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C 135/32 EN Official Journal of the European Union 7.6.

2003

4 February 2003 by Osotspa Co., Ltd., Bangkok, Thailand, Pleas in law: The applicant claims that a mini-
represented by C. Gassauer-Fleissner, lawyer, with an address mal degree of similarity between
for service in Luxembourg. Distribution & Marketing GmbH, the marks is sufficient for a find-
Salzburg, Austria, was also a party to the proceedings before ing that there is a likelihood of
the Board of Appeal. confusion because the goods are
identical

The applicant claims that the Court should:

— vary the contested decision of the Third Board of Appeal


of 27 November 2002 in appeal proceedings No R 296/
2002-3 so as to allow the applicant’s opposition to the Action brought on 14 March 2003 by Suproco N.V.
against the Commission of the European Communities
application for registration of the mark ‘Hai’ filed by
Distribution & Marketing GmbH on 10 September 1997
and refuse the application for registration; (Case T-101/03)

— in the alternative, refer the case back to the Office for (2003/C 135/53)
Harmonisation in the Internal Market;
(Language of the case: Dutch)

— order the defendant to pay the applicant’s costs.

An action against the Commission of the European Communi-


ties was brought before the Court of First Instance of the
European Communities on 14 March 2003 by Suproco
N.V., having its registered office in Curação, represented by
Pleas in law and main arguments M.M. Slotboom and N.J. Helder.

The applicant claims that the Court should:


Applicant for Com- Distribution & Marketing GmbH
munity trade mark: — declare its action to be admissible;

— annul the European Commission decision of 10 January


Community trade mark The word mark ‘Hai’ for goods 2003 addressed to the Member States and refusing to
sought: and services in Classes 5, 32, 33, grant a derogation from Council Decision 2001/822/EC
35 and 42 (inter alia, vitamin in regard to the rules of origin for sugar from the
preparations, fruit juices, Netherlands Antilles;
alcoholic beverages, catering for
guests) (application No 628172) — order the Commission to pay the costs of the proceedings.

Proprietor of mark or The applicant, Osotspa Co., Ltd.


sign cited in the oppo-
sition proceedings: Pleas in law and main arguments

Mark or sign cited in The Community figurative mark The applicant is a sugar-processing undertaking established in
opposition: No 168427 and the national figu- the Netherlands Antilles. It imported, inter alia, sugar from a
rative mark ‘Shark’ for goods in cane-sugar supplier in Columbia. It processed this sugar into
Class 32 (non-alcoholic drinks, brown granulated sugar and sugar lumps and re-exported it to
syrups and other preparations for the EC pursuant to Article 3 of Annex II and Appendix 2 to
making beverages) Annex II to Decision 91/482/EEC (1). On the basis of those
rules the applicant’s products were treated as being products
of OCT origin.
Decision of the Oppo- Rejection of the applicant’s oppo-
sition Division: sition
Similar rules have also been adopted in Article 4 of Annex III
and Appendix 2 ( 2) to Annex III to Decision 2001/822
Decision of the Board of Dismissal of the appeal (the OCT Decision) ( 3), which replaces Decision 91/482/EEC.
Appeal: Article 5(1)(g) of Annex III to the present OCT Decision,
7.6.2003 EN Official Journal of the European Union C 135/33

however, provides that operations to colour sugar or to form Commission, it argues, was wrong to turn down the request
sugar lumps constitute insufficient processing to confer OCT for a derogation on the ground that, both for sugar from an
origin. Those products of the applicant thus no longer qualify ACP country and for sugar from a non-ACP country, the added
for OCT origin. value after processing by the applicant came to more than
45 %. According to the applicant, Article 37(7) of Annex III to
the OCT Decision makes no provision for such a comparison
and consequently makes no provision for any such ground for
The Kingdom of the Netherlands subsequently applied for a rejection of the request for a derogation.
derogation in favour of the applicant. That request was rejected
in the contested decision.
(1 ) Council Decision 91/482/EEC of 25 July 1991 on the association
of the overseas countries and territories with the European
Economic Community (OJ 1991 L 263, p. 1).
The applicant first of all raises an objection that Article 5(1)(g) (2 ) Appendix 2 to Annex III to Council Decision 2001/822/EC of
of Annex III to the OCT Decision is unlawful. In the applicant’s 27 November 2001 on the association of the overseas countries
view, it is incorrect to state that operations to colour sugar or and territories with the European Community (‘the OCT Decision’)
to form sugar lumps constitute insufficient processing for the (OJ 2001 L 324, p. 1).
(3 ) Council Decision 2001/822/EC of 27 November 2001 on the
purpose of conferring OCT origin. The applicant submits that
association of the overseas countries and territories with the
this provision infringes the principle of non-discrimination European Community (‘the OCT Decision’) (OJ 2001 L 314, p. 1).
and that it is arbitrary and at variance with the principles of
the protection of legitimate expectations and of legal certainty.

The applicant goes on to argue that the Commission had no


power in view of the fact that the contested decision was
adopted after the expiry of the decision-making period of 75
working days laid down in Article 37(8)(a) of Annex III to the Action brought on 28 March 2003 by Arran Aromatics
OCT Decision. The applicant contends that the request for a Limited, Mr Iain Russel and Mr Allastair Rennick against
derogation ought therefore to be deemed to have been the Commission of the European Communities
accepted pursuant to Article 37(8)(b) of Annex III to the OCT
Decision.
(Case T-109/03)

The applicant concludes by arguing that there has been a (2003/C 135/54)
breach of Article 37 of Annex III to the OCT Decision and a
manifest misappraisal of the facts. The applicant submits that (Language of the case: English)
the Commission is confusing the conditions of Article 37 of
Annex III to the OCT Decision.

An action against the Commission of the European Communi-


The applicant argues that cumulation of origin does not ties was brought before the Court of First Instance of the
represent an alternative solution for it. Importation of ACP European Communities on 28 March 2003 by Arran Aro-
sugar cannot be justified in view of the high price. Such sugar, matics Limited, Isle of Arran, Scotland, Mr Iain Russel, Isle of
it argues, is also unsuitable with regard to quality. The Arran, Scotland, and Mr Allastair Rennick, Isle of Arran,
applicant submits that the condition governing derogation set Scotland, represented by Mr C. Pouncey, Solicitor and
out in Article 37(4) of Annex III to the OCT Decision is Mr L. Van Den Hende, lawyer.
thereby also satisfied.

The applicant claims that the Court should:

The applicant goes on to argue that, under Article 37(3)(b) of — Order the defendant to pay damages pursuant to
Annex III to the OCT Decision, application of the existing Article 288 EC for the losses sustained by them through
rules of origin would significantly reduce its prospects of the breaches of community law set out in the application,
continuing to export to the EC. In its view, the Commission is all sums to be increased with compensatory interest at a
wrong to impose as a necessary condition for a derogation the rate of 8 % to be applied from the day on which the
requirement that application of the existing rules of origin damage materialised;
would lead to cessation of its activities.
— Order the defendant to pay legal interest on such sums as
are found to be due at a rate of 8 %;
The applicant further contends that the Commission misap-
plied Article 37(7) of Annex III to the OCT Decision. The — Order the defendant to pay the costs of the proceedings.