ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/54

Action brought on 24 September 2008 — El Fatmi v Council

(Case T-409/08)

(2008/C 301/90)

Language of the case: Dutch

Parties

Applicant: El Fatmi (Vught, Netherlands) (represented by: G. Pulles)

Defendant: Council of the European Union

Form of order sought

— Declare Regulation (EC) No 2580/2001 to be inapplicable and/or declare Council Decision 2008/583/EC of 15 July 2008 to be void, in so far as they apply to the applicant;

— order the Council to pay the costs.

Pleas in law and main arguments

The applicant asks the Court to declare Regulation (EC) No 2580/2001 (1) to be inapplicable to him and Council Decision 2008/583/EC (2) to be void, in so far as it applies to the applicant.

First, the applicant submits that the Council acted contrary to the requirements of Article 5 EC. The Council had no power, since there is no connection to third countries or to the common market.

Second, Articles 60, 301 and 308 EC do not confer any power to adopt the contested regulation.

Third, the Council acted contrary to Article 1(3) of Common Position 2001/931 of 27 December 2001 (3) and infringed essential procedural requirements and principles of Community law, including the duty to state reasons. According to the applicant, the national decisions on which the Council also relies are not decisions adopted by a competent authority within the meaning of Article 1(4) of the Common Position or are decisions that have been annulled on appeal to the national courts.

Fourth, the Council has infringed the applicant's fundamental rights and in particular the right to respect for private and family life, the right to effective judicial protection and the right to property.

(1) Council Regulation (EC) No 2580/2001of 27 December 2001on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

(2) Council Decision of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21).

(3) Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).
EN Official Journal of the European Union C 313/41

Action brought on 29 September 2008 — OSA v Commission

(Case T-418/08)

(2008/C 313/75)

Language of the case: English

Parties

Applicant: Ochranný svaz autorský pro práva k dílům hudebním (OSA) (Prague, Czech Republic) (represented by: M. Favart, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) relating to a proceeding under Article 81 EC and Article 53 EEA. Precisely, the applicant contests the Commission findings in Article 3 of the contested decision stating that territorial delineations of the reciprocal representation mandates granted by one authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The pleas in law and main arguments raised by the applicant are identical to those raised by the applicant in Case T-415/08 IMRO v Commission.
EN Official Journal of the European Union C 327/34

Action brought on 1 October 2008 — 1-2-3.TV v OHIM — Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion (1-2-3.TV)

(Case T-440/08)

(2008/C 327/62)

Language in which the application was lodged: German

Parties

Applicant: 1-2-3.TV GmbH (Unterföhring, Germany) (represented by: V. von Bomhard, A. Renck, T. Dolde und E. Nicolás Gómez, lawyers)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Zweites Deutsches Fernsehen (Mainz, Germany) and Televersal Film- und Fernseh-Produktion GmbH (Hamburg, 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 30 June 2008 (Case R 1076/2007-1); and

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘1-2-3.TV’ for services in classes 35, 38 and 41 — Application No 3 763 133

Proprietor of the mark or sign cited in the opposition proceedings: Zweites Deutsches Fernsehen and Televersal Film- und Fernseh-Produktion GmbH

Mark or sign cited in opposition: National figurative mark ‘1, 2 ODER 3 ZDF-ORF-SFDRS’ for goods and services in classes 3, 5, 9, 12, 14, 16, 18, 21, 24, 25, 26, 27, 28, 29, 30, 32, 35, 38, 41 and 42

Decision of the Opposition Division: Opposition partly upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, there being no likelihood of confusion between the marks in opposition on account of the differing overall impression of the marks.
EN Official Journal of the European Union C 32/40

Action brought on 18 November 2008 — Wessang v OHIM — Greinwald (star foods)

(Case T-492/08)

(2009/C 32/77)

Language in which the application was lodged: French

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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

Other party to the proceedings before the Board of Appeal: Greinwald GmbH (Kempten, Germany)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of 17 September 2008;

— Uphold the opposition filed by Mr Nicolas WESSANG of 26 September 2005 against the application for registration of the mark STAR FOODS + device No 004105615;

— Reject that application for registration No 004105615 in its entirety;

— Order the company Greinwald GmbH to pay the whole of the costs incurred by Mr Nicolas WESSANG in the opposition proceedings, the appeal proceedings and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Greinwald GmbH

Community trade mark concerned: Figurative mark ‘star foods’ for goods in Classes 29, 30 and 32 — application No 4 105 615

Proprietor of the mark or sign cited in the opposition proceedings: Nicolas Wessang

Mark or sign cited in opposition: Community figurative and word marks ‘STAR SNACKS’ for goods in Classes 29, 30 and 31

Decision of the Opposition Division: The opposition is upheld

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

Pleas in law: According to the applicant, there is a likelihood of confusion between the two marks at issue, to the extent that they are extremely similar both visually and phonetically or conceptually and refer to similar or even identical goods.
EN Official Journal of the European Union C 19/34

Action brought on 18 November 2008 — NEC Display Solutions Europe v OHIM — C More Entertainment (see more)

(Case T-501/08)

(2009/C 19/63)

Language in which the application was lodged: English

Parties

Applicant: NEC Display Solutions Europe GmbH (Munich, Germany) (represented by: P. Munzinger, lawyer)

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

Other party to the proceedings before the Board of Appeal: C More Entertainment AB (Stockholm, Sweden)

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 28 August 2008 in case R 1388/2007-4 and reject the opposition;

— Order OHIM to pay the costs; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs, should it become an intervener in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘see more’ for goods in class 9 — application No 4 034 741

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: Danish trade mark registration No VR 2004 01590 of the word mark ‘CMORE’ for goods and services in classes 9, 16, 35, 38 and 41; Finish trade mark registration No 231 366 of the word mark ‘CMORE’ for goods and services in classes 9, 16, 35, 38 and 41

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 44/64

Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 13 November 2008 in Case F-90/07 Traore v Commission

(Case T-572/08 P)

(2009/C 44/109)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by J. Currall, G. Berscheid and B. Eggers, acting as Agents)

Other party to the proceedings: Amadou Traore (Rhode-Saint-Genèse, Belgium)

Form of order sought by the appellant

— annul the judgment of the Civil Service Tribunal of 13 November 2008 in Case F-90/07 in so far as it upheld the first plea alleging irregularity of the recruitment procedure, infringement of Articles 7(1) and 29(1) of the Staff Regulations and the principles of equal treatment and eligibility for promotion, in that the level of posts was fixed at grades AD9 to AD14 in so far as it concerned the post of head of operations in Tanzania, and annulled the rejection of Mr Traore's candidature and the appointment of Mr S. to that post;

— dismiss the action brought by Mr Traore before the Civil Service Tribunal in Case F-90/07 in so far as it was upheld by that tribunal;

— order the applicant at first instance to pay the costs of the appeal and rule as required on the costs of the proceedings before the Civil Service Tribunal.

Pleas in law and main arguments

By this appeal, the Commission seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 13 November 2008 in Case F-90/07 Traore v Commission, in which the CST annulled the Commission's decision of 12 December 2006, rejecting Mr Traore's candidature for the post of head of operations of the Commission's delegation in Tanzania and the decision to appoint another candidate to that post, inasmuch as the level at which the post at issue was to be filled had been fixed at grades AD 9 to AD 14 (and not limited to one of the groups of two grades AD 9/AD 10, AD 11/AD 12 or AD 13/AD 14).

In support of its appeal, the Commission adduces pleas alleging:

— error of law by the CST in misinterpreting the judgment of the Court of First Instance of 8 July 2008 in Case T-56/07 P Commission v Economidis (not yet published in the ECR), in so far as the CST erroneously limited the scope of that judgment to the case of filling a post of head of unit, whereas the same conditions applied to other AD posts, such as that at issue in this case;
EN Official Journal of the European Union C 32/43

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-500/08)

(2009/C 32/84)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 31 October 2008 refusing access to the same documents is non-existent;

— alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 31 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

— order the Commission to pay the costs incurred by the applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Tampere-Pirkkala airport. The said decision was followed by the express decision of 31 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

(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 44/66

Action brought on 24 December 2008 — PJ Hungary/OHIM v Pepekillo (PEPEQUILLO)

(Case T-580/08)

(2009/C 44/112)

Language in which the application was lodged: Spanish

Parties

Applicant: PJ Hungary Szolgáltató (PJ Hungary kft), (Budapest, Republic of Hungary) (represented by: M. Granado Carpenter and C. Gutiérrez Martínez, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pepekillo SL (Algeciras, Spain)

Form of order sought

— Annul the decision of 30 April 2008 (Case R-722/2007) of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), which granted the restitutio in integrum claimed by PEPEKILLO SL;

— Annul the decision of 24 September 2008 (Case R-722/2007) of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), which set aside the decision of the Opposition Division of 9 March 2007 and, as a result, granted Community trade mark No 3 546 471 ‘PEPEQUILLO’, and make such other order as is appropriate in accordance with Community law; and

— Order the defendant to pay the costs of the present proceedings, in addition to the costs incurred during the administrative procedure before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Marta Sancho Lora, who subsequently assigned the application to the company PEPEKILLO SL.

Community trade mark concerned: The word mark ‘PEPEQUILLO’ (Application No 3.546.471) for goods in classes 18 and 25 and services in class 35.

Proprietor of the mark or sign cited in the opposition proceedings: The applicant, to whom the company ‘PEPE JEANS N.V.’ had assigned its rights.

Mark or sign cited in opposition: Spanish word marks ‘PEPE’ and ‘PEPE JEANS’, Spanish figurative marks ‘PEPE JEANS LONDON’, Spanish word marks ‘PEPE 2XL’, ‘PEPE F4’, ‘PEPE M99’, ‘PEPE F4’, ‘PEPE M3’, ‘PEPE M5’ and ‘PEPE F6’, Spanish figurative marks ‘PEPE JEANS LONDON’, ‘PEPE JEANS 73’, ‘PEPE JEANS PORTOBELLO’, ‘PEPE’ and Spanish word marks ‘PEPE JEANS M2’, ‘PEPE BETTY’, ‘PEPE CLOTHING’ and ‘PEPECO’, for goods in classes 3, 9, 14, 18 and 25; and Community word and figurative marks ‘PEPE JEANS’ for goods in classes 3, 9, 14 and 18.

Decision of the Opposition Division: Opposition upheld and application refused

Decision of the Board of Appeal: Pleas in law admitted and appeal upheld.

Pleas in law: Incorrect application of Articles 78 and 8(1)(b) and (5) of Regulation No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 55/43

Action brought on 22 December 2008 — 4care v OHIM — Laboratorios Diafarm (Acumed)

(Case T-575/08)

(2009/C 55/76)

Language in which the application was lodged: German

Parties

Applicant: 4care AG (Kiel, Germany) (represented by: S. Redeker, 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: Laboratorios Diafarm, SA (Barbera del Valles, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2008 in Case R 16636/2007-2 and reject the opposition entered by Laboratorios Diafarm, SA;

— order the defendant and Laboratorios Diafarm, SA to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘Acumed’ for goods in Classes 3, 5 and 9 (application for registration No 4493136).

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Diafarm, SA.

Mark or sign cited in opposition: Spanish word mark ‘AQUAMED ACTIVE’ (trade mark No 2506452) for goods in Class 5 and Community word mark ‘AQUAMED ACTIVE’ (No 2882272) for goods in Class 5.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 55/35

Action brought on 18 December 2008 — mPAY24 v OHIM — Ultra (MPAY)

(Case T-557/08)

(2009/C 55/65)

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: H. Z. Zeiner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ultra d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

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 30 September 2008 in case R 221/2007-1 to the extent that the opposition filed by the applicant has been rejected; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘MPAY’, for goods and services in classes 9, 35, 36, 37, 38 and 42 — application No 3 587 896

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

Mark or sign cited: Community trade mark registration No 2 061 656 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38; Austrian trade mark registration No 200 373 of the word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark application in its entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 69/42

Action brought on 29 December 2008 — Perusahaan Otomobil Nasional v OHIM — Proton Motor Fuel Cell (PM PROTON MOTOR)

(Case T-581/08)

(2009/C 69/95)

Language in which the application was lodged: English

Parties

Applicant: Perusahaan Otomobil Nasional Sdn. BHD (Shah Alam, Malaysia) (represented by: J. Blind, C. Kleiner and S. Ziegler, lawyers)

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

Other party to the proceedings before the Board of Appeal: Proton Motor Fuel Cell GmbH (Starnberg, 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 9 October 2008 in case R 1675/2007-1, uphold the opposition No 501 306 for all goods and services and reject the application for the Community trade mark No 2 296 408; and

— Order the defendant and, if the case might be, the other party to the proceedings before the Board of Appeal to pay the costs of proceedings and the costs of appeal incurred before the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘PM PROTON MOTOR’, for goods and services in classes 7, 9 and 42 — application No 2 296 408

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

Mark or sign cited: Community trade mark registration No 198 564 of the word mark ‘PROTON’ for goods and services in classes 12 and 37; Community trade mark registration No 1 593 201 of the figurative mark ‘PROTON’ for goods and services in classes 12 and 37; United Kingdom trade mark registration No 1 322 343 of the series of marks ‘PROTON’ for services in class 37; United Kingdom trade mark registration No 2 227 660 of the figurative mark ‘PROTON’ for goods and services in classes 12 and 37; United Kingdom trade mark registration No 2 182 057 of the word mark ‘PROTON DIRECT’ for goods in class 12; Registration of the word mark ‘PROTON’ in Benelux, Denmark, Finland, Germany, Greece, Ireland, Portugal and Spain

Decision of the Opposition Division: Allowed the opposition in its entirety

Decision of the Board of Appeal: Annulled the contested decision and dismissed the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was no likelihood of confusion between the trade marks concerned; Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal failed to find that the trade mark cited in the opposition proceedings has reputation in the United Kingdom.