ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 328/34

Action brought on 24 September 2010 — Fulmen v Council

(Case T-439/10)

()

2010/C 328/58

Language of the case: French

Parties

Applicant: Fulmen (Tehran, Iran) (represented by: A. Kronshagen, lawyer)

Defendant: Council of the European Union

Form of order sought

— Annul point 11 of Section I B of the annex to Council Regulation (EU) No 668/2010 concerning restrictive measures against Iran, and the Council's decision of 26 July 2010 in so far as it concerns the applicant;

— order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Council implementing Regulation (EU) No 668/2010 implementing Article 7(2) of Regulation (EC) No 423/2007, (1) and Council Decision 2010/413/CFSP, (2) concerning restrictive measures against Iran with the aim of preventing nuclear proliferation, in so far as the applicant's name has been placed on the list of persons, entities and bodies whose funds and economic resources are frozen pursuant to that provision.

In support of its action the applicant submits that the contested Council decision should be annulled since there is no relevant decision of a competent authority justifying, at the time of its adoption, the inclusion of the applicant on the list of organisations involved in Iran's nuclear or ballistic missiles activities.

The applicant also alleges an infringement of procedural guarantees in that its rights of defence and its right to a fair hearing have been infringed in so far as:

— the Council did not sufficiently reason its decision to include the applicant's name on the contested list;

— the factors held against the applicant were not communicated prior to the Council's decision; and

— the applicant was not provided with the opportunity to effectively express its point of view on those factors.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25).

(2) Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).
—

Annul Decision 2010/420/EU of the European Commission of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize MON89034xNK603 (MON-89Ø34-3xMON-ØØ6Ø3-6) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council;
EN Official Journal of the European Union C 346/48

Action brought on 9 October 2010 — SE — Blusen Stenau v OHIM (SPORT EYBL & SPORTS EXPERTS (SE© SPORTS EQUIPMENT)

(Case T-477/10)

()

2010/C 346/94

Language in which the application was lodged: German

Parties

Applicant: SE — Blusen Stenau GmbH (Gronau, Germany) (represented by: O. Bischof, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: SPORT EYBL & SPORTS EXPERTS GmbH (Wels, Austria)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 July 2010 in Case R 1393/2009-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: SPORT EYBL & SPORTS EXPERTS GmbH.

Community trade mark concerned: Figurative mark containing the word element ‘SE© SPORTS EQUIPMENT’ for goods in Classes 18 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

Mark or sign cited in opposition: German word mark and international registration ‘SE’ for goods in Class 25 and German word marks ‘SE So Easy’ and ‘SE-Blusen’ for goods in Classes 14, 18, 24 and 25.

Decision of the Opposition Division: Opposition allowed in part.

Decision of the Board of Appeal: The contested decision was annulled and remitted to the Opposition Division for further consideration.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) in that the marks at issue are identical and there is a likelihood of confusion.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 13/33

Action brought on 8 November 2010 — Interkobo v OHIM — XXXLutz Marken (mybaby)

(Case T-523/10)

()

2011/C 13/64

Language in which the application was lodged: Polish

Parties

Applicant: Interkobo Sp. z o.o. (Łódź, Poland) (represented by: R. Skubisz, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: XXXLutz Marken GmbH (Wels, Austria)

Form of order sought

— declare invalid in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2010 in Case R 88/2009-4;

— order the defendant and XXXLutz Marken GmbH to pay the costs of the proceedings, including the costs incurred by the applicant in the proceedings before the Board of Appeal and the Opposition Division of the Office for Harmonisation in the Internal Market.

Pleas in law and main arguments

Applicant for a Community trade mark: XXXLutz Marken GmbH.

Community trade mark concerned: figurative mark ‘my baby’ for goods in Class 28 — application no 4894416.

Proprietor of the mark or sign cited in the opposition proceedings: the applicant.

Mark or sign cited in opposition: national word mark ‘MYBABY’, national figurative mark ‘mybaby’ and international word mark ‘MYBABY’ for goods in Class 28.

Decision of the Opposition Division: upholding of the opposition and rejection of the application for a trade mark for goods in Class 28.

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the opposition.

Pleas in law: breach of Rule 20(1), in conjunction with Rule 19(2)(a)(i) and (ii) and Rule 19(3), of Regulation No 2868/95 (1) and infringement of the right to seek protection of legitimate expectations.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
—

annul Decision 2010/426/EU of the European Commission of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize Bt11xGA21 (SYN-BTØ11-1xMON-ØØØ21-9) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council;
EN Official Journal of the European Union C 30/45

Action brought on 22 November 2010 — Organismos Kypriakis Galaktokomikis Viomichanias v OHIM — Garmo (GAZI Hellim)

(Case T-535/10)

()

2011/C 30/82

Language in which the application was lodged: German

Parties

Applicant: Organismos Kypriakis Galaktokomikis Viomichanias (Lefkosia, Cyprus) (represented by: C. Milbradt and H. Van Volxem, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Garmo AG (Stuttgart, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2010 in Case R 1497/2009-4;

— Order the defendant to pay the costs, including the costs incurred in the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Garmo AG

Community trade mark concerned: the figurative mark ‘GAZI Hellim’ for goods in Class 29

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the collective word mark ‘HALLOUMI’ for goods in Class 29

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as the marks and goods at issue are similar and there is a likelihood of confusion between the marks

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 30/45

Action brought on 22 November 2010 — Organismos Kypriakis Galaktokomikis Viomichanias v OHIM — Garmo (HELLIM)

(Case T-534/10)

()

2011/C 30/81

Language in which the application was lodged: German

Parties

Applicant: Organismos Kypriakis Galaktokomikis Viomichanias (Lefkosia, Cyprus) (represented by: C. Milbradt and H. Van Volxem, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Garmo AG (Stuttgart, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2010 in Case R 794/2010-4;

— Order the defendant to pay the costs, including the costs incurred in the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Garmo AG

Community trade mark concerned: the word mark ‘HELLIM’ for goods in Class 29

Proprietor of the mark or sign cited in the opposition proceedings: the applicant

Mark or sign cited in opposition: the collective word mark ‘HALLOUMI’ for goods in Class 29

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as the marks and goods at issue are similar and there is a likelihood of confusion between the marks, and infringement of Article 63(2) of Regulation No 207/2009 as the applicant should have been able to rely on having the opportunity to respond to the observations of the respondent in the appeal proceedings before OHIM

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 46/15

Action brought on 13 December 2010 — Bimbo v OHIM — Panrico (BIMBO DOUGHNUTS)

(Case T-569/10)

2011/C 46/29

Language in which the application was lodged: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Panrico, SL (Barcelona, Spain)

Form of order sought

— Modify the decision of the Fourth Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 838/2009-4 and grant the Community trade mark application No 5096847;

— In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 838/2009-4; and

— Order the defendant and the other party to the proceedings to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘BIMBO DOUGHNUTS’, for goods in class 30 — Community trade mark application No 5096847

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Spanish trade mark registration No 399563 of the word mark ‘DONUT’ for goods in class 30; Spanish trade mark registration No 643273 of the figurative mark ‘donuts’ for goods in class 30; Spanish trade mark registration No 1288926 of the word mark ‘DOGHNUTS’ for goods in class 30; Spanish trade mark registration No 2518530 of the figurative mark ‘donuts’ for goods in class 30; Portuguese trade mark registration No 316988 of the word mark ‘DONUTS’ for goods in class 30; International trade mark registration No 355753 of the word mark ‘DONUT’ for goods in class 30; International trade mark registration No 814272 of the figurative trade mark ‘donuts’ for goods in class 30

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 75 and 76 of Council Regulation (EC) No 207/2009, as the Board of Appeal disregarded facts and evidences that were submitted in due time by the parties, and that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of likelihood of confusion.
EN Official Journal of the European Union C 63/29

Action brought on 22 December 2010 — Wohlfahrt v OHIM — Ferrero (Kindertraum)

(Case T-580/10)

2011/C 63/55

Language in which the application was lodged: German

Parties

Applicant: Harald Wohlfahrt (Rothenburg o.d. Tauber, Germany) (represented by: N. Scholtz-Recht, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Ferrero SpA (Alba, Italy)

Form of order sought

— Annul the decision of the Opposition Division of 27 May 2009 (Opposition No B 668 600) and the decision of the Board of Appeal of 20 October 2010 in Case R 815/2009-4;

— Order that Community trade mark ‘Kindertraum’, application No 002773059, be registered also for all goods applied for in Classes 16 and 28;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kindertraum’ for goods in Classes 15, 16, 20, 21 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Ferrero SpA.

Mark or sign cited in opposition: A total of 32 older marks which, in part figuratively, in part as a component of a multi-word mark and in part as a single word, contain the word ‘kinder’, in particular the Italian word mark ‘kinder’ for goods and services in Classes 9, 16, 28, 30 and 42.

Decision of the Opposition Division: Upheld the opposition and refused registration.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Article 42(2) of Regulation (EC) No 207/2009 (1) on the ground of missing evidence of use after expiry of the period of protected use during the opposition proceedings. Formal lack of grounds for the contested decision, since the Board of Appeal, in its decision, failed to examine the abusive trade mark application alleged in the grounds for the appeal and extensively supported by evidence. Further, an abusive trade mark application, since the sole aim of the proprietors of the opposing mark is to monopolise the term ‘kinder’ in the widest possible manner. Finally, infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since there is no likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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in the alternative, annul, pursuant to Article 263 of the Treaty on the Functioning of the European Union, Article 2 of the decision of the European Commission of 30 September 2010 amending the decision of 30 June 2010 (C(2010) 4837 final in Case COMP/38.344 — prestressing steel) insofar as it entails an infringement of the principle of non-discrimination in not having extended to TQ the additional period for payment of the fine, and fails to state reasons; and
1.

The first ground of appeal alleges misinterpretation of the concept of ‘decision taken in response to the complaint’ (‘décision prise en réponse à la réclamation’). In the view of the appellant, the decision taken on 10 July 2007 by the authority of the European Parliament empowered to conclude contracts of employment (‘the AECE’) was incorrectly held to be a new decision dismissing the appellant and setting aside the first dismissal decision, as it did not re-establish the situation which existed before the first decision was adopted.
EN Official Journal of the European Union C 72/21

Action brought on 17 December 2010 — Zenato v OHIM — Camera di Commercio Industria Artigianato e Agricoltura di Verona (RIPASSA)

(Case T-595/10)

2011/C 72/36

Language in which the application was lodged: Italian

Parties

Applicant: Alberto Zenato (Verona, Italy) (represented by: A. Rizzoli, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM: Camera di Commercio Industria Artigianato e Agricoltura di Verona (Verona, Italy)

Form of order sought

The applicant claims that the Court should:

— declare the present action, together with the related annexes, admissible;

— annul the decision of the Board of Appeal in so far as it annuls the contested decision and orders the costs of the appeal proceedings to be shared;

— uphold, in consequence, the decision of the Opposition Division;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Alberto Zenato.

Community trade mark concerned: Word mark ‘RIPASSA’ (registration application No 106 955) for goods in Class 33.

Proprietor of the mark or sign cited in the opposition proceedings: Camera di Commercio Industria Artigianato e Agricoltura di Verona.

Mark or sign cited in opposition: Italian word mark ‘VINO DI RIPASSO’ (No 528 778) for goods in Class 33.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Contested decision annulled and case remitted to the Opposition Division.

Pleas in law: Infringement and misapplication of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 80/22

Action brought on 11 January 2011 — Timab Industries and CFPR v Commission

(Case T-14/11)

2011/C 80/42

Language of the case: French

Parties

Applicants: Timab Industries (Dinard, France) and Cie financière et de participations Roullier (CFPR) (Saint-Malo, France) (represented by: N. Lenoir, lawyer)

Defendant: European Commission

Form of order sought

— annul the decision;

— order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

The applicants seek the annulment of the Commission’s decision of 17 November 2010 implicitly refusing access to Commission documents relating to the procedure initiated by the Commission in Case COMP/38.866 concerning a cartel in the European market for animal feed phosphates.

In support of the action the applicants rely on two pleas in law.

1. The first plea in law alleges infringement of the obligation to state reasons in so far as the Commission did not reply to the confirmatory application for access to its decision or decisions fixing the probable ranges of fines as regards the addressees of Decision C(2010) 5004 Final, which was adopted as a result of settlement proceedings.

2. The second plea in law alleges errors of law and manifest errors of assessment in so far as the Commission relied, during the examination procedure in respect of the application for access to the documents, on the first and third indents of Article 4(2) and the second subparagraph of Article 4(3) of Regulation No 1049/2001 (1) to justify the refusal of access. The applicants submit that the documents requested: — are not opinions, but decisions in respect of which it is not established that communication of them may seriously undermine the decision-making process; — do not contain any sensitive commercial data; — have no connection with inspections, investigations and audits.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 89/25

Action brought on 28 January 2011 — Vermop Salmon v OHIM — Leifheit (Clean Twist)

(Case T-61/11)

2011/C 89/48

Language in which the application was lodged: German

Parties

Applicant: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, O. Sude and M. Ring, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Leifheit AG (Nassau, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case R 671/2010-1;

— Declare Community trade mark No 4892642 ‘Clean Twist’ invalid;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant;

— In the event that Leifheit AG intervenes in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘Clean Twist’ for goods in Class 21

Proprietor of the Community trade mark: Leifheit AG

Applicant for the declaration of invalidity of the Community trade mark: the applicant

Grounds for the application for a declaration of invalidity: the earlier word marks ‘TWIX’ and ‘TWIXTER’ for goods in Classes 9, 12, 21, 22 and 25. Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009. (1)

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009 as there is a likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 72/32

Action brought on 20 January 2011 — Fraas v OHIM (tartan pattern in pink, violet, beige and dark grey colours)

(Case T-31/11)

2011/C 72/49

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by R. Kunze and G. Würtenberger, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 November 2010 in Case R 1284/2010-4;

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark, which shows a tartan pattern in pink, violet, beige and dark grey colours, for goods in classes 18, 24 and 25.

Decision of the Examiner: Rejection of the registration.

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

Pleas in law: Infringement of Article 7(1)(b) read in conjunction with Article 7(2) of Regulation (EC) No 207/2009, (1) since the trade mark concerned is distinctive, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 because the Board of Appeal failed to deal with the applicant’s extensive factual and legal submissions.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).