ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 290/14

Action brought on 3 August 2011 — Afriqiyah Airways v Council

(Case T-436/11)

2011/C 290/20

Language of the case: French

Parties

Applicant: Afriqiyah Airways (Tripoli, Libya) (represented by: B. Sarfati, lawyer)

Defendant: Council of the European Union

Form of order sought

Annulment of Council Implementing Decision 2011/300/CFSP of 23 May 2011 implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 136, p. 85), together with Annex II to that decision;

Order that the Council pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1. First plea in law, alleging that the procedure for adopting the measure was irregular. The applicant pleads that the procedure concerning the adoption of the contested decision provided for by Article 8(2) of Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 53) was irregular, and relies on breach of the provisions of the second paragraph of Article 296 TFEU.

2. Second plea in law, alleging infringement of the obligation to state the reasons for the decision. The applicant criticises the Council for providing a stereotype statement of reasons, which did not enable the addressee of the decision to understand the reasons for its adoption, nor the General Court to exercise its judicial review of the measure’s legality. The ground that the applicant is a subsidiary of and owned by the Libyan African Investment Portfolio, an entity itself covered by the restrictive measures, is insufficient.

3. Third plea in law, alleging infringement of the rights of the defence on the ground that it was not established that the rights of the defence were respected or that the applicant was put in a position to assert its rights prior to its inclusion on the list.

4. Fourth plea in law, alleging breach of Article 27 TEU. The applicant claims that Decision 2011/137/CFSP referred to in paragraph 2 and Council Decision 2011/178/CFSP of 23 March 2011 amending Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya (OJ 2011 L 78, p. 24), were adopted in breach of Article 27(1) TEU.
EN Official Journal of the European Union C 298/20

Action brought on 29 July 2011 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active)

(Case T-414/11)

2011/C 298/37

Language in which the application was lodged: German

Parties

Applicant: Nutrichem Diät + Pharma GmbH (Roth, Germany) (represented by: D. Jochim and R. Egerer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Compagnie Gervais Danone (Levallois Perret, France)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in Case R 683/2010-1;

— 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: the figurative mark containing the word element ‘Active’ for goods in Classes 5, 29 and 32 — application No 3 423 316.

Proprietor of the mark or sign cited in the opposition proceedings: Compagnie Gervais Danone.

Mark or sign cited in opposition: the national word mark ‘ACTIVIA’ for goods in Classes 5, 29, 30 and 32.

Decision of the Opposition Division: the opposition was upheld.

Decision of the Board of Appeal: the appeal was dismissed.

Pleas in law: Infringement (i) of Article 76 of Regulation No 207/2009 in conjunction with Rule 50(1) and Rule 19(1) and (3) of Regulation No 2868/95 as the Board of Appeal incorrectly assumed that the earlier mark has average distinctive character; (ii) of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue; and (iii) of Article 76 of Regulation No 207/2009 as the parallel decisions of the German Patent and Trade Mark Office and of other national authorities, cited by the applicant, were not taken into account when the defendant took its decision.
EN Official Journal of the European Union C 298/28

Action brought on 23 August 2011 — Dectane v OHIM — Hella (DAYLINE)

(Case T-463/11)

2011/C 298/53

Language in which the application was lodged: German

Parties

Applicant: Dectane GmbH (Leipzig, Germany) (represented by: P. Ehrlinger and T. Hagen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Hella KGaA Hueck & Co. (Lippstadt, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision of the First Board of Appeal of OHIM of 15 June 2011;

— Order the intervener to pay the costs including those incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘DAYLINE’ for goods in Class 11 — application No 7 070 238.

Proprietor of the mark or sign cited in the opposition proceedings: Hella KGaA Hueck & Co.

Mark or sign cited in opposition: the national word mark ‘Ledayline’ for goods in Class 11.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the Opposition Division’s decision and refusal to register the mark as a Community trade mark.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.
2.

Second plea in law, alleging that the defendant violated the due process and the right of defence, as well as the principle of sound administration, as it wrongly took into account the alleged concern regarding isomer ratio which was only identified as a critical concern for the first time during the resubmission and at a very late stage of the procedure. As a result, the applicant was not given an opportunity to address the issue. Moreover, the defendant failed to take into consideration the proposal from the applicant for amendment.
EN Official Journal of the European Union C 311/44

Action brought on 28 July 2011 — Hemofarm v OHIM — Laboratorios Diafarm (HEMOFARM)

(Case T-411/11)

2011/C 311/83

Language in which the application was lodged: Spanish

Parties

Applicant: Hemofarm AD farmaceutsko-hemijska industrija Vršac (Vršac, Serbia) (represented by: D. Cañadas Arcas)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Diafarm, SA (Barberá del Vallès, Spain)

Form of order sought

The applicant claims that the General Court should:

— stay the proceedings brought by the applicant before the General Court in its action against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 May 2011 until OHIM and Barcelona Commercial Courts Nos 4 and 8 have adjudicated upon the applications for a declaration of invalidity and for revocation on grounds of non-use;

— in the alternative, review, annul or, if necessary, vary decision R 298/2010-4 of the Fourth Board of Appeal as regards the contested goods in Class 5, so as to reject opposition B 996 506 in relation to that class, and consequently grant the applicant’s application for Community trade mark No 4 504 049‘HEMOFARM’ for all the goods in Class 5 and register that mark in Classes 5 and 35 as sought.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘HEMOFARM’ for goods and services in Classes 3, 5 and 35.

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

Mark or sign cited in opposition: Community and international word mark ‘HEMOFARM’ for goods in Classes 3 and 16 and national word marks ‘HEMOPLANT’ and ‘HEMONET’ for goods in Class 5.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) as 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).
EN Official Journal of the European Union C 347/41

Appeal brought on 29 September 2011 by Sandro Gozi against the judgment of the Civil Service Tribunal of 20 July 2011 in Case F-116/10 Gozi v Commission

(Case T-519/11 P)

2011/C 347/73

Language of the case: Italian

Parties

Appellant: Sandro Gozi (Rome, Italy) (represented by G. Passalacqua and G. Calcerano, lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Annul the measure taken by the Directorate General for Human Resources and Security — HR.D.2/MB/db Ares (2010) — Y96 985 of 6 August 2010.

— Recognise and declare the right of Mr Gozi to reimbursement of legal costs and, consequently, order the payment of the sum of EUR 24 480 plus costs.

Pleas in law and main arguments

The present appeal is brought against the decision by which the defendant refused reimbursement of the sum of EUR 24 480 for the legal costs incurred by the appellant in legal proceedings in Italy.

In support of his appeal, Mr Gozi relies on a sole ground of appeal alleging that the judgment under appeal in the present case seems to be wrong in law and marred in several places by reasoning which is clearly contradictory, since that judgment disregards the rationale and wording of Article 24 of the Staff Regulations of the Officials of the European Union, thereby running counter to the case-law referred to in the judgment itself and to the findings of fact in the proceedings before the Commission.
EN Official Journal of the European Union C 340/31

Action brought on 26 September 2011 — France v Commission

(Case T-511/11)

2011/C 340/62

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, J. Gstalter and J. Rossi, acting as Agents)

Defendant: European Commission

Form of order sought

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By its application, the applicant asks the Court to annul decision C(2011) 4973 final of the European Commission concerning State aid No C 46/2003 relating to contributions to the Association nationale interprofessionnelle du bétail et des viandes (Interbev). The Commission considered that the voluntary contributions that had become compulsory, levied by Interbev, constituted State aid compatible with the internal market.

In support of the action, the applicant relies on two pleas in law, the first of which is essentially identical or similar to that relied on in Case T-478/11 France v Commission.

The second plea alleges a breach by the Commission of its obligation to conduct the administrative procedure within a reasonable time.
1.

First plea in law, alleging infringement of Article 107 TFEU in conjunction with Articles 1 and 2 of Regulation No 1998/2006 on account of the incorrect finding or mere claim that there is an advantage The Commission’s finding that the measure is covered by the de minimis Regulation is substantively incorrect. The addressees of the loans scheme received no advantage for the purposes of Article 107(1) TFEU with the result that the loans scheme should not therefore be regarded as aid in the main cases to which it applies. — The Commission should not have concluded that an advantage exists from the mere fact that loans are granted by a special credit institution. What matters especially as regards loans are the loan conditions. In order to determine whether an advantage is being granted the interest rate required, the collateral for the loan and the overall position of the undertaking receiving the loan are decisive. It must be ascertained whether a private investor would have granted a comparable loan at the agreed interest rate and on the basis of the securities indicated. — In accordance with the previous decision-making practice of the Commission, those indicators were, in the case of subordinated loans, concretised by means of the so-called Brandenburg method on the basis of the Commission reference rate communication in such a way that there was no aid within the meaning of Article 107(1) TFEU. The Commission is suddenly departing from that decision-making practice and solely taking into account the characteristics of the credit institution which is granting the loan. Those characteristics are, however, completely unsuitable as indicators since special credit institutions are also capable of acting under market conditions.
EN Official Journal of the European Union C 355/25

Action brought on 29 September 2011 — Volvo Trademark v OHMI — Hebei Aulion Heavy Industries (LOVOL)

(Case T-525/11)

2011/C 355/46

Language in which the application was lodged: English

Parties

Applicant: Volvo Trademark Holding AB (Göteborg, Sweden) (represented by: M. Treis, lawyer)

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

Other party to the proceedings before the Board of Appeal: Hebei Aulion Heavy Industries Co., Ltd (Xuanhua, China)

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 23 June 2011 in case R 1868/2010-1;

— Reject the Community trade mark application No 5029814; and

— Order the other party to the proceedings to bear the costs of the applicant in connection with the present proceedings, the appeal before the Board of Appeal and the proceedings before the Opposition division.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘LOVOL’, for goods in classes 7 and 12 — Community trade mark application No 5029814

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

Mark or sign cited in opposition: Community trade mark registration No 2361087, of the word mark ‘VOLVO’, for goods and services in classes 1-9, 11-12, 14, 16-18, 20-22, 24-28 and 33-42; Community trade mark application No 4804522, of the figurative mark ‘VOLVO’, for goods and services in classes 1-4, 6, 7, 9, 11-12, 14, 16, 18, 25, 28, 35-39 and 41; UK trade mark registration No 747361, of the figurative mark ‘VOLVO’, for goods in class 12; UK trade mark registration No 747362, of the word mark ‘VOLVO’, for goods in class 12; UK trade mark registration No 1051579, of the word mark ‘VOLVO’, for goods in class 7; UK trade mark registration No 1408143, of the figurative mark ‘VOLVO’, for goods in class 7

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(5) of Council Regulation No 207/2009, as the Board of Appeal failed to take all relevant factors into account when comparing the marks, thereby mistakenly found that there was no similarity in the marks. Infringement of a rule of law related to the application of the Regulation, and in particular, the principles established by the Court of Justice of the European Union in cases C-361/04 P, Ruiz-Picasso e.a./OHMI of 12 January 2006, ECR I-643 and case C-252/07, Intel Corporation, ECR I-8823, by applying them in a rigidly formalistic manner, and consequently, by not examining the merits of the opposition under Article 8(5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 6/17

Action brought on 12 October 2011 — Spectrum Brands (UK) v OHIM — Philips (STEAM GLIDE)

(Case T-544/11)

2012/C 6/33

Language in which the application was lodged: English

Parties

Applicant: Spectrum Brands (UK) Ltd (Manchester, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Koninklijke Philips Electronics NV (Eindhoven, Netherlands)

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 14 July 2011 in case R 1289/2010-1; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear their own costs and those incurred by the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘STEAM GLIDE’, for goods in class 9 — Community trade mark registration No 5167382

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The other party to the proceedings before the Board of Appeal filed a request for a declaration of invalidity on the basis of Article 52(1)(a) in conjunction with the absolute grounds of refusal of Article 7(1)(a), (b) and (c) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Annulled the contested decision and declared the Community trade mark registration invalid

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in relation to the meaning and syntax of the mark and its component parts, as well as its aptness or otherwise as an immediate and direct descriptive term for the goods in question. Further the Board of Appeal failed to consider the general interest that underlies Article 7(1)(c) CTMR. Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed to consider the essential function of the mark, failed to consider the perspective of the average consumer, failed to consider Article 7(1)(b) separately from Article 7(1)(c), failed to consider the general interest that underlies Article 7(1)(b) CTMR and failed to analyse the mark as a whole.
EN Official Journal of the European Union C 13/17

Action brought on 21 October 2011 — BytyOKD v Commission

(Case T-559/11)

2012/C 13/36

Language of the case: Czech

Parties

Applicant: Sdružení nájemníků BytyOKD.cz (Ostrava, Czech Republic) (represented by: R. Pelikán, lawyer)

Defendant: European Commission

Form of order sought

— annul Commission Decision C(2011) 4927 final of 13 July 2011, State aid No SA.25076 (2011/NN) — Czech Republic: Privatisation of OKD a.s. to Karbon Invest a.s.;

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, arguing that the Commission infringed Article 108(3) TFEU by not initiating the formal procedure under Article 108(2) even though in the preliminary examination it had, in the applicant’s opinion, encountered serious difficulties in assessing the compatibility with the common market of the measure of the Czech Republic under investigation. The defendant thereby deprived the applicant of the procedural rights which it would have been guaranteed in the formal procedure by Article 108(2) TFEU.
—

The substantive criteria for the designation of the applicant are not met and/or the Council designated the applicant on the basis of insufficient evidence to establish that the criteria were met and/or the Council committed a manifest error of assessment in determining whether or not the criteria were met. In particular, the applicant is not responsible for violent repression against the civilian population in Syria, and he has not supported or benefited from the Syrian regime and he is not associated with anyone that is responsible for the violent repression or who has supported or benefited from the Syrian regime. The only allegation made against the applicant is that he has provided economic support for the Syrian regime. This is false.
2.

Second plea in law, divided into four parts, alleging infringement of the rights of the defence and of the right to a fair hearing, of the duty to state reasons, of the right to a private life and the right to freedom of religion, since: — the applicant has not been sent any evidence or serious indications which could have led to his inclusion in the list of persons subject to sanction and was not heard before the adoption of the contested acts; — the defendant merely used a very general form of words in the contested acts, in particular without stating reasons, when drawing up the restrictive measures against the applicant; — the adoption of restrictive measures against the applicant has given rise to strong reactions and threats from persons or groups which are victims of the Syrian repression with which the applicant has been associated following the contested acts; — the true reason for the adoption of the restrictive measures against the applicant is religious in nature.
Third plea in law: justification on the basis of the nature and the internal logic of the taxation system

The applicant claims in the course of the third plea in law that the carrying-forward of losses is justified by the nature and the internal logic of the German taxation system, as it is a system — consistent exception to the exception of a forfeiture of losses pursuant to Paragraph 8c(1) of the German Law on corporation tax (Körperschaftsteuergesetz; ‘KStG’) which leads back to the reference system complies with it.
EN Official Journal of the European Union C 32/37

Action brought on 5 December 2011 — Meyr-Melnhof Karton v OHIM — Stora Enso (SILVAWHITE)

(Case T-617/11)

2012/C 32/73

Language in which the application was lodged: English

Parties

Applicant: Meyr-Melnhof Karton AG (Vienna, Austria) (represented by: P. Baronikians and N. Wittich, lawyers)

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

Other party to the proceedings before the Board of Appeal: Stora Enso Oyj (Helsinki, Finland)

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 21 September 2011 in case R 2139/2010-2;

— Reject the opposition against the Community trade mark application No 8197469; and

— Order that the defendant pays the applicant’s costs incurred before OHIM and the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SILVAWHITE’, for goods in class 16 — Community trade mark application No 8197469

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: Finnish trade mark registration No 231953 of the word ‘SILVAPRESS’, for goods in class 16; International trade mark registration No 872793 of the word ‘SILVAPRESS’, for goods in class 16

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal wrongly ruled that likelihood of confusion exists between the earlier mark and the Community trade mark application.