Action brought on 13 May 2008 - Schräder v CPVO - Hansson (Sumost 01)

(Case T -177/08)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office

Other party to the proceedings before the Board of Appeal: Jørn Hansson (Søndersø, Denmark)

Form of order sought

Annul the decision of the Board of Appeal of the Community Plant Variety Office of 4 December 2007 (Ref. A 005/2007);

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for Community plant variety rights: Ralf Schräder.

Community plant variety right at issue: 'Sumost 01' (Variety application No 2001/1758).

Proprietor of the opposing Community plant variety right: Jørn Hansson.

Opposing Community plant variety right: 'Lemon Symphony'.

Decision of the Community Plant Variety Office, appealed against before the Board of Appeal: Rejection of the application for Community plant variety rights.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law:

-    Infringement of Article 59(2) of Regulation (EC) No 1239/95¹, in that the applicant was not duly summoned to the oral proceedings;

-    Infringement of Article 75 of Regulation (EC) No 2100/94², in that the appealed decision was based on grounds and evidence on which the applicant had no opportunity to present his comments;

-    Infringement of Article 81(2) and Article 48 of Regulation No 2100/94 on account of the alleged partiality of an employee of the defendant, whose evidence was relied on in the decision;

-    Infringement of Article 60 of Regulation No 1239/95, in that no formal decision was issued concerning hearing the oral evidence of an employee of the defendant;

-    Infringement of Article 62 of Regulation No 2100/94 by reason of an insufficient and flawed assessment of the facts as regards distinctiveness;

-    Infringement of Article 48 of Regulation No 2100/94 on account of alleged partiality on the part of one of the members of the Board of Appeal.

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¹ - Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).

² - Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).