ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 193/32

Action brought on 30 June 2009 — Caixa Geral de Depósitos v OHIM — Caixa d'Estalvis i Pensions de Barcelona (‘la Caixa’)

(Case T-255/09)

2009/C 193/51

Language in which the application was lodged: Spanish

Parties

Applicant: Caixa Geral de Depósitos (Lisbon, Portugal) (represented by: F. de la Rosa and M. Lobato García-Miján, 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: Caixa d'Estalvis i Pensions de Barcelona

Form of order sought

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 24 March 2009 based on Article 8(1)(b) of the Regulation on the Community trade mark;

— alternatively, annul the earlier decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 24 March 2009 based on Article 7(1)(b) of the Regulation on the Community trade mark;

— order OHIM and, if appropriate, the intervener, to pay the costs incurred in these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: CAIXA D'ESTALVIS I PENSIONS DE BARCELONA

Community trade mark concerned: Figurative mark which contents the verbal element ‘la Caixa’ (Application No 4 685 145) for goods and services in classes 9, 16, 36, 38 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: CAIXA GERAL DE DEPOSITOS S.A.

Mark or sign cited in opposition: Various Portuguese word marks which contain the prefix ‘caixa’ (Nos 357 311, 261 198, 268 466, 302 708, 303 290, 325 155, 325 156, 325 224, 330 542 and 342 311) for goods and services in classes 9, 16 and 36, and Portuguese figurative mark (No 357 310) which contains the word ‘caixa’ for goods and services in classes 9, 16 and 36.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal allowed and contested decision annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 on the Community trade mark and, alternatively, Article 7(1)(b) thereof.
EN Official Journal of the European Union C 180/61

Action brought on 8 June 2009 — CLARO v OHIM — Telefónica (Claro)

(Case T-225/09)

2009/C 180/113

Language in which the application was lodged: Spanish

Parties

Applicant: CLARO, SA (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal: Telefónica, SA (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM of 26 February 2009, in Case R 1079/2008-2, remit the case to that board for it to decide on it afresh, and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BCP S/A, now trading as CLARO, S.A., the applicant.

Community trade mark concerned: Three-dimensional trade mark containing the word element “CLARO” (application for registration No 5 229 241), for goods and services in Classes 9 and 38.

Proprietor of the mark or sign cited in the opposition proceedings: Telefónica S.A.

Mark or sign cited in opposition: earlier Community word mark “CLARO” (No 2 017 341), for, inter alia, goods and services in Classes 9 and 38.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed as inadmissible, since the applicant had not filed the relevant statement of grounds for the appeal.

Pleas in law: The applicant submits that the contested decision is contrary to the principle of functional continuity between the Opposition Division and the Board of Appeal. It argues that it was obvious that its appeal was against the Opposition Division’s decision in its entirety, and that the appeal was based on the misinterpretation by the Opposition Division of Article 8(1)(b) of Regulation (EC) No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 220/39

Action brought on 17 July 2009 — Verband Deutscher Prädikats- und Qualitätsweingüter v OHIM (GG)

(Case T-278/09)

2009/C 220/82

Language in which the application was lodged: German

Parties

Applicant: Verband Deutscher Prädikats- und Qualitätsweingüter eV (Gau-Algesheim, Germany) (represented by N. Schindler, lawyer)

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

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) (OHIM) of 30 April 2009 (Case R 1568/2008-1);

— order OHIM to pay its own costs and those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘GG’ for goods in Class 33 (registration application No 6 388 284)

Decision of the Examiner: Refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 75 due to a lack of reasons on which the decision was based and of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1), since the trade mark applied for has the requisite distinctive character and there is no need for it to be allowed to remain available.

(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 220/34

Action brought on 2 July 2009 — AECOPS v Commission

(Case T-257/09)

2009/C 220/72

Language of the case: Portuguese

Parties

Applicant: Associação de Empresas de Construção, Obras Públicas e Serviços (Aecops) (Lisbon, Portugal) (represented by: J.L. da Cruz Vilaça and L. Pinto Monteiro, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Commission of the European Communities of 22 June 2005 in respect of File 89 0979 P3, reducing the aid granted by Decision C(89) 0570 of 22 March 1989 to PTE 426 070 and requiring the reimbursement of the amount of PTE 1 591 128;

— Order the Commission to pay the costs.

Pleas in law and main arguments

Infringement of the right to a prior hearing: the applicant was not given the opportunity to comment before a definitive decision to reduce the financial assistance was adopted, which constitutes the breach of an essential procedural requirement the disregard of which renders such a decision void.

Infringement of the principal of legal certainty through limitation and excessive delay in adopting a decision.

Breach of the duty to state reasons: the contested decision fails to set out, even summarily, the reasons for reducing the assistance.
EN Official Journal of the European Union C 244/7

Action brought on 24 July 2009 — Omnicare v OHIM — Astellas Pharma (formerly Yamanouchi Pharma) (OMNICARE CLINICAL RESEARCH)

(Case T-289/09)

2009/C 244/11

Language in which the application was lodged: English

Parties

Applicants: Omnicare, Inc. (Covington, United States) (represented by: M. Edenborough, Barrister)

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

Other party to the proceedings before the Board of Appeal: Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (Heidelberg, 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 14 May 2009 in case R 401/2008-4; and

— Award the applicant the costs incurred in connection with this appeal before the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘OMNICARE CLINICAL RESEARCH’, for services in class 42

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: German trade mark registration of the mark ‘OMNICARE’ for services in classes 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark applied for

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 207/2009 as the Board of Appeal wrongly held that: (a) the trade marks concerned were similar; (b) that there was genuine use of the trade mark cited in the opposition proceedings; (c) that the services for which genuine use had been shown were similar; and (d) that, as a consequence, there existed a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 244/4

Action brought on 10 July 2009 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut)

(Case T-276/09)

2009/C 244/07

Language in which the application was lodged: English

Parties

Applicants: Kavaklidere-Europe N.V. (Antwerp, Belgium) (represented by: I.D. Tygat and J.A. Vercraeye, lawyers)

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

Other party to the proceedings before the Board of Appeal: Kabushiki Kaisha Yakult Honsha (Tokyo, Japan)

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 8 May 2009 in case R 1396/2008-4;

— Declare that the trade mark ‘Yakut’ should be allowed for registration as a Community trade mark; and

— Order the defendant to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Yakut’, for goods in class 33

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: Community trade mark registration of the figurative mark ‘Yakult’ for goods in classes 29 and 32; the earlier mark ‘YAKULT’ claimed to be well-known in all the Member States of the European Union for goods in classes 29 and 32; the earlier non-registered trade mark ‘YAKULT’ claimed to be protected in all the Member States of the European Union for goods in classes 29 and 32.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(4) of Council Regulation 40/94 (which became Articles 8(1)(b) and 8(4) of Council Regulation 207/2009) as the Board of Appeal erred in its findings that the goods applied for had to be considered similar and that there is a high degree of visual and phonetic similarity between the trade marks concerned; infringement of Article 8(5) of Council Regulation 40/94 (which became Article 8(5) of Council Regulation 207/2009) as the Board of Appeal wrongly considered that the Community trade mark concerned takes unfair advantage of, or be detrimental to, the distinctive character or the repute of the trade mark cited in the opposition proceedings.
EN Official Journal of the European Union C 256/35

Action brought on 1 September 2009 — Winzer Pharma v OHIM — Alcon (BAÑOFTAL)

(Case T-346/09)

2009/C 256/63

Language in which the application was lodged: English

Parties

Applicants: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, lawyer)

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

Other party to the proceedings before the Board of Appeal: Alcon, Inc. (Hünenberg, Switzerland)

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 28 May 2009 in case R 795/2008-1;

— Order the defendant, in any event the other party to the proceedings before the Board of Appeal, to pay the costs; and

— In the auxiliary, defer the matter to OHIM.

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 word mark “BAÑOFTAL”, for goods in class 5

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

Mark or sign cited: German trade mark registration of the mark “PAN-OPHTAL” registered for goods in class 5; German trade mark registration of the mark “KAN-OPHTAL” registered for goods class 5

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly assessed the visual, phonetic and conceptual similarities between the trade marks concerned, wrongly held that the Community trade mark concerned would not fall under the series of “Ophtal” trade marks of the other party to the proceedings before the Board of Appeal and wrongly denied an enhanced distinctiveness of the trade marks cited in the opposition proceedings based on use, thereby wrongly decided that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation 207/2009 as the Board of Appeal omitted to make any statements on this ground of opposition; infringement of Articles 75 and 76(1) of Council Regulation 207/2009 as the Board of Appeal wrongly omitted to provide reasons, in any event comprehensive reasons, allowing an understanding of the decision.
EN Official Journal of the European Union C 256/32

Action brought on 10 August 2009 — E v Parliament

(Case T-326/09)

2009/C 256/56

Language of the case: French

Parties

Applicant: E (London, United Kingdom) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

— annul the decision adopted by the Bureau of the Parliament of 9 March and 3 April 2009 amending the Additional Voluntary Pension Scheme for Members of the European Parliament;

— order the Parliament to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks annulment of the decisions of the Bureau of the European Parliament of 9 March and 3 April 2009 amending the rules on the Additional (Voluntary) Pension Scheme in Annex VIII of the Rules governing the payment of expenses and allowances to Members of the European Parliament. The amendments essentially concern the withdrawal of the possibility to take early retirement from age 50 and the possibility to receive the pension as a lump sum, and the raising of the retirement age from 60 to 63 years.

The pleas in law and main arguments invoked by the applicant are, in essence, identical or similar to those invoked in the context of Case T-219/09 Balfe and Others v Parliament (1).

(1) OJ 2009 C 205, p. 39.
EN Official Journal of the European Union C 267/78

Action brought on 15 September 2009 — Pucci International v OHIM — El Corte Inglés (Emidio Tucci)

(Case T-357/09)

2009/C 267/140

Language in which the application was lodged: English

Parties

Applicants: Emilio Pucci International BV (Baarn, The Netherlands) (represented by: M. Boletto, E. Gavuzzi, G. Lazzeretti and P. Roncaglia, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, 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 18 June 2009 in joined cases R 770/2008-2 and R 826/2008-2, in so far as it accepted registration of Community trade mark application No 3 679 594“Emidio Tucci” for all the goods and services it covers in classes 1, 2, 4-17, 19, 20, 21, 22, 23, 26-45;

— Order the defendant to pay the costs incurred by the applicant during these proceedings; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs incurred by the applicant during the proceedings before OHIM’s Opposition Division and Board of Appeal.

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 “Emidio Tucci”, for goods and services in classes 1-45

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

Mark or sign cited: Community trade mark registration of the figurative mark “Emilio Pucci” registered for goods in classes 18 and 24; Italian trade mark registration of the word mark “EMILIO PUCCI” registered for goods classes 3, 14, 18, 21, 24, 25 and 33; Italian trade mark registration of the word mark “EMILIO PUCCI” registered for goods classes 9, 12, 18, 20, 26, 27 and 34; Italian trade mark registration of the figurative mark “Emilio Pucci” registered for goods classes 14, 18, 24 and 25

Decision of the Opposition Division: Partially accepted the opposition

Decision of the Board of Appeal: Partially upheld the appeal in cases R 826/2008-2 and R 770/2008-2; dismissed the appeal for the remainder

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation 207/2009 as the Board of Appeal erred in its conclusion that these legal provisions could not apply with respect to the goods and services covered by the Community trade mark concerned in classes 1, 2, 4-17, 19, 20, 21 (part of), 22, 23 and 26-45.
EN Official Journal of the European Union C 267/76

Action brought on 3 September 2009 — PAGO International v OHIM — Tirol Milch (Pago)

(Case T-349/09)

2009/C 267/136

Language in which the application was lodged: German

Parties

Applicant: PAGO International GmbH (Klagenfurt, Austria) (represented by: C. Hauer and C. Schumacher, 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: Tirol Milch reg.Gen.mbH Innsbruck (Innsbruck, Austria)

Form of order sought

— Amend the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 concerning cancellation proceedings No 2025 C (Community trade mark No 915 488) so as to dismiss the appeal by Tirol Milch registrierte Genossenschaft mit beschränkter Haftung against the decision of the Cancellation Division of 4 August 2008, and order Tirol Milch registrierte Genossenschaft mit beschränkter Haftung to pay the costs of the appeal proceedings;

— in the alternative, annul the decision of the Fourth Board of Appeal and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The coloured figurative mark ‘Pago’ for goods in Class 32 (Community trade mark No 915 488)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Tirol Milch registrierte Genossenschaft mit beschränkter Haftung

Decision of the Cancellation Division: Revocation in part of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and revocation of the Community trade mark

Pleas in law:

— Infringement of Article 51 in conjunction with Article 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as it was incorrectly deemed not to have been proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor;

— Infringement of Article 75 of Regulation No 207/2009 and of fundamental Community rights, in particular the right to a fair hearing.

(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 282/56

Action brought on 25 September 2009 — El Corte Inglés v OHIM — Pucci International (Emidio Tucci)

(Case T-373/09)

2009/C 282/105

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés (Madrid, Spain) (represented by: J. Rivas Zurdo, 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: Emilio Pucci International BV (Amsterdam, Netherlands)

Form of order sought

— annul the decision of 18 June 2009 of the Second Board of Appeal of OHIM in Joined Cases 770/2008-2 and 826/2008-2 in so far as, by partially upholding the applicant and the opponent's applications, it rejects the Community mark 3 679 591 with respect to classes 3, 18, 24, 25 and for ‘articles for cleaning purposes; steelwool’ in class 21;

— allow registration of Community mark No 3 679 591‘EMIDIO TUCCI’ in its entirety;

— order the party or parties opposing this application to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘EMIDIO TUCCI’ (Application No 3 679 594) in handwritten letters for goods and services in classes 1 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: EMILIO PUCCI INTERNATIONAL B.V.

Mark or sign cited in opposition: Community figurative mark ‘EMILIO PUCCI’ No 203570 (classes 18 and 24), Italian word marks No 769250 (Classes 3, 14, 18, 21, 24, 25 and 33) and No 274991 (classes 9, 12, 18, 20, 26, 27 and 34) and Italian word mark No 275894 (classes 14, 18, 24 and 25).

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeals brought by the applicant and the opponent partially upheld.

Pleas in law: Incorrect interpretation of Article 8(1)(b) and 8(5) of Regulation No 207/2009.
EN Official Journal of the European Union C 282/57

Action brought on 28 September 2009 — Lorenz Shoe Group v OHIM — Fuzhou Fuan Leather Plastics Clothing Making (Ganeder)

(Case T-374/09)

2009/C 282/106

Language in which the application was lodged: German

Parties

Applicant: Lorenz Shoe Group AG (Taufkirchen, Austria) (represented by: M. Douglas, 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: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd (Fujian, People’s Republic of China)

Form of order sought

— Annul the decision of the First Board of Appeal of 16 July 2009 in Case R 1289/2008-1;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Fuzhou Fuan Leather Plastics Clothing Making Co. Ltd

Community trade mark concerned: the word mark ‘Ganeder’ for goods in Classes 14, 18 and 25 (Application No 5 108 774)

Proprietor of the mark or sign cited in the opposition proceedings: Lorenz Shoe Group AG (formerly shoe fashion group LORENZ AG)

Mark or sign cited in opposition: The word mark ‘Ganter’ for goods in Class 25 (Community trade mark No 469 262), in respect of opposition only to the registration for goods in that class

Decision of the Opposition Division: Dismissal 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), since there is a likelihood of confusion between the trade 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).