ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/51

Action brought on 18 September 2008 — Clearwire Corporation v OHIM (CLEARWIFI)

(Case T-399/08)

(2008/C 301/86)

Language of the case: English

Parties

Applicant: Clearwire Corporation (Kirkland, United States) (represented by G. Konrad, 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) of 30 June 2008 in case R 706/2008-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark CLEARWIFI for services in class 38 — international registration No W00 934 594

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the grounds for refusal put forward by the Board of Appeal do not preclude registration.
EN Official Journal of the European Union C 313/37

Action brought on 22 September 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Shape of a chocolate rabbit)

(Case T-395/08)

(2008/C 313/68)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by R. Lange, E. Schalast and G. Hild, 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 18 July 2008 (Case No R 419/2008-4);

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark in the form of a chocolate rabbit for goods in Class 30 — Application No 3 664 372

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark applied for is unusual, has the function of indicating origin and has the necessary distinctive character.
EN Official Journal of the European Union C 313/42

Action brought on 29 September 2008 — SAZAS v Commission

(Case T-420/08)

(2008/C 313/77)

Language of the case: English

Parties

Applicant: Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (Sazas) (Trzin, Slovenia) (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/C2/38698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment of Article 3 of Commission Decision C(2008) 3435 of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38698 — CISAC) alleging that 24 of CISAC's (1) EEA based societies, including the applicant, engaged in a concerted practice ‘by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society’.

The main pleas and arguments are similar or identical to those raised in Case T-413/08.

(1) Refers to the International Confederation of Societies of Authors and Composers (‘CISAC’).
EN Official Journal of the European Union C 327/31

Action brought on 22 September 2008 — MIP Metro v OHIM — CBT Comunicación Multimedia (Metromeet)

(Case T-407/08)

(2008/C 327/57)

Language in which the application was lodged: German

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Dusseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, 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: CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of 12 June 2008 in Case R 387/2007-1 as it is incompatible with Article 8(1)(b) of Regulation No 40/94 on the Community trade mark and refuse application No 37 405 29 for the Community trade mark ‘metromeet’;

— Order OHIM to pay the costs of the proceedings, including those of the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: CBT Comunicación Multimedia, SL

Community trade mark concerned: Figurative mark ‘Metromeet’ for goods and services in Classes 9, 16, 35 and 41 — Application No 3 740 529

Proprietor of the mark or sign cited in the opposition proceedings: MIP Metro

Mark or sign cited in opposition: The national figurative mark ‘METRO’ and the word mark ‘meeting metro’ for goods and services in Classes 9, 16, 35 and 41

Decision of the Opposition Division: Opposition upheld

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

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 in that there is a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 327/36

Action brought on 2 October 2008 — S.L.V. Elektronik v OHIM — Jiménez Muñoz (LINE)

(Case T-449/08)

(2008/C 327/64)

Language in which the application was lodged: German

Parties

Applicant: S.L.V. Elektronik GmbH (Übach-Palenberg, Germany) (represented by: C. König, 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: Angel Jiménez Muñoz (Gelida, Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 18 July 2008 in Case R 759/2007-4 in so far as registration of the trade mark applied for (003316908) is refused in respect of ‘mains-operated lights, lighting apparatus and installations, stage effects lighting apparatus; electric lamps; individual parts for the aforesaid goods’; and order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings before the Court of First Instance.

Pleas in law and main arguments

Applicant for a Community trade mark: S.L.V. Elektronik GmbH

Community trade mark concerned: Figurative mark ‘LINE’ for goods in class 11 — registration No 3 316 908

Proprietor of the mark or sign cited in the opposition proceedings: Angel Jiménez Muñoz

Mark or sign cited in opposition: National figurative and word marks ‘Line’ for goods and services in classes 9, 35, 37 and 38

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Annulment in part of the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, as there is no likelihood of confusion between the marks in opposition. Furthermore, the Board of Appeal did not proceed on the basis of the trade mark applied for but on the basis of a design that was not identical.
EN Official Journal of the European Union C 6/40

Action brought on 5 November 2008 — Alisei v Commission

(Case T-481/08)

(2009/C 6/79)

Language of the case: Italian

Parties

Applicant: Alisei NGO (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone, S. Gobbato, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision D (2007) 8449 of 19 August 2008;

— Order the Commission to compensate for the loss suffered;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a non-governmental organisation active in the field of international cooperation for development and humanitarian assistance, challenges the Commission's decision confirming that the procedure initiated in June 2006, concerning the accounting verification of a selection of contracts concluded with the applicant, was in order. The Commission had also provided the applicant with the final report from Ernst & Young, informing it that that report was a reliable technical basis for taking the necessary measures, in particular the launching of a recovery procedure for a total amount of EUR 4 750 121.

The applicant puts forward the following arguments in support of its action:

— infringement of the principle of sound administration and diligence in administrative action, in that the applicant was subjected to an administrative procedure the nature and rules for implementation of which were quite specific, only to discover subsequently that that procedure in reality had a purpose and was conducted in a manner quite different from what had been communicated to it. In particular, the defendant decided, first of all, to initiate an accounting verification procedure to be carried out through an audit, before accepting the findings obtained through a different verification procedure, a ‘amicable procedure’, of which the applicant was never informed.

— infringement of the provisions governing limitations, in that the decision orders, without distinction, the recovery of amounts which should not have been claimed because the defendant's right to demand repayment of those amounts had been extinguished.

The applicant also alleges infringement of its rights of defence, and of the principle of proportionality.

Lastly, it asks that the Commission be ordered to compensate for the loss suffered.
EN Official Journal of the European Union C 6/39

Action brought on 3 November 2008 — Mundipharma v OHIM — ALK-Abelló (AVANZALENE)

(Case T-477/08)

(2009/C 6/77)

Language in which the application was lodged: English

Parties

Applicant: Mundipharma AG (Basel, Switzerland) (represented by: F. Nielsen, lawyer)

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

Other party to the proceedings before the Board of Appeal: ALK-Abelló A/S (Hørsholm, Denmark)

Form of order sought

— Revoke 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 1694/2007-4; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘AVANZALENE’ for goods in class 5 — application No 4 632 501

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 No 3 331 444 of the word mark ‘AVANZ’ for goods in class 5

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 19/30

Action brought on 11 November 2008 — Giordano Enterprises v OHIM — José Dias Magalhães & Filhos (GIORDANO)

(Case T-483/08)

(2009/C 19/58)

Language in which the application was lodged: English

Parties

Applicant: Giordano Enterprises Ltd (Jalan Merdeka, Malaysia) (represented by: M. Nentwig, lawyer)

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

Other party to the proceedings before the Board of Appeal: José Dias Magalhães & Filhos Lda (Arrifana, Portugal)

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 28 July 2008 in case R 1864/2007-2, as far as it dismissed the appeal of the applicant; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GIORDANO’ for goods in classes 18 and 25

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: Portuguese trade mark registration No 322 534 of the word mark ‘GIORDANO’ for goods in class 25

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division to the extent that it upheld the opposition for certain goods in class 18 and dismissed the appeal for the reminder

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; Infringement of Article 42 of Council Regulation No 40/94 as well as Rule 15 of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly rendered a decision pursuant to Article 8(1)(a) of Council Regulation No 40/94 while the other party to the proceedings before the Board of Appeal based its opposition only on Article 8(1)(b) of Council Regulation 40/94.

(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).
EN Official Journal of the European Union C 44/65

Action brought on 23 December 2008 — Eridania Sadam v Commission

(Case T-579/08)

(2009/C 44/111)

Language of the case: Italian

Parties

Applicant: Eridania Sadam SpA (Bologna, Italy) (represented by: G.M. Roberti, lawyer, I. Perego, lawyer, B. Amabile, lawyer, and M. Serpone, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claims that the Court should:

— annul the contested Decision;

— require by way of measure of inquiry, in accordance with Articles 65 and 66 of the Rules of Procedure, the production before the Court of the documents in the Commission's case-file;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, Eridania Sadam SpA contests, in accordance with the fourth paragraph of Article 230 EC, the Commission's decision of 16 July 2008 in State aid case C 29/2004 (ex N 328/2003).

In support of its action, the applicant relies on four pleas in law, respectively alleging:

— misapplication of Article 87(1) EC to the facts and, in any event, erroneous assessment of the facts and failure to state sufficient reasons, in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities was likely, if implemented, to affect trade between Member States and to distort competition;

— infringement of Article 87(2)(b) EC and of the guidelines applicable to State aid in the agricultural sector, and breach of the Commission's own working practice — and, in any case, erroneous assessment of the facts and failure to state sufficient reasons — in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities could not be treated as an exception under Article 87(2)(b) EC;

— infringement of Article 87(3)(c) EC — and, in any case, erroneous assessment of the facts and failure to state sufficient reasons — in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities could not be treated as an exception under Article 87(3)(c) EC;
EN Official Journal of the European Union C 32/41

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-496/08)

(2009/C 32/80)

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;

— 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 Berlin-Schönefeld airport.

The pleas in law and main arguments relied on by the applicant are similar 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 44/63

Action brought on 16 December 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CM Capital Markets)

(Case T-563/08)

(2009/C 44/107)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding, SA (Madrid, Spain), (represented by: T. Villate Consonni and J. Calderón Chavero, lawyers)

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

Other party to the proceedings before the Board of Appeal: Carbon Capital Markets Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of 26 September 2008 in Case R-015/2008-1, which would lead to the refusal of the contested mark in its entirety;

— Uphold the applicant's claims, and

— Order OHIM to pay the costs of the present proceedings should they be contested and reject its claims.

Pleas in law and main arguments

Applicant for a Community trade mark: CARBON CAPITAL MARKETS LIMITED.

Community trade mark concerned: The word mark ‘CARBON CAPITAL MARKETS’ (Application No 4 480 208) for services in class 36.

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

Mark or sign cited in opposition: The national and Community figurative marks ‘CAPITAL MARKETS’ for services in class 36.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 44/51

Action brought on 2 December 2008 — AIB-Vinçotte Luxembourg v Parliament

(Case T-524/08)

(2009/C 44/91)

Language of the case: French

Parties

Applicant: AIB-Vinçotte Luxembourg ASBL (Luxembourg, Luxembourg) (represented by R. Adam, lawyer)

Defendant: European Parliament

Form of order sought

— annul the decision of the European Parliament of 2 October 2008 rejecting the offer made by the applicant in connection with call for tenders INLO — A — BATI LUX — 07 268 & 271 — 00 for the refurbishment and extension of the Konrad Adenauer Building, Luxembourg,

— reserve to the applicant all other rights, remedies, pleas and actions, in particular an order that the Parliament pay damages in connection with the loss incurred;

— in any event, order the Parliament to pay the costs.

Pleas in law and main arguments

The applicant contests the Parliament's decision to reject its offer submitted in connection with the call for tenders for lot B of the contract relating to the projected extension and refurbishment of the KAD building in Luxembourg — Tasks of an approved inspection body (OJ 2008 S 193-254240).

In support of its application, the applicant puts forward four pleas in law:

— manifest error of assessment on the part of the Parliament, in that (i) the association to which the contract was awarded did not have the necessary authorisations to perform the tasks requested, as required in the tender specifications, and (ii) that association's offer stated a price that was abnormally low having regard to the criteria in the specifications;

— infringement of the obligation to state reasons, in that (i) the Parliament did not state the specific benefits of the offer accepted in comparison with the applicant's offer, thus not enabling the applicant to identify the reasons why its offer was not accepted, and (ii) the applicant was not put in a position to know whether the assessment committee met and, if so, what its conclusions were;

— infringement of the principles of diligence, good administration and transparency, as the Parliament failed to provide the explanations requested within a reasonable time;
EN Official Journal of the European Union C 55/45

Action brought on 24 December 2008 — Kerma v OHIM (BIOPIETRA)

(Case T-586/08)

(2009/C 55/80)

Language in which the application was lodged: Italian

Parties

Applicant: Kerma SpA (Puegnago sul Garda, Italy) (represented by A. Manzoni, lawyer)

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

Form of order sought

— declare that the trade mark BIOPIETRO conforms with Article 4 of the Trade Mark Regulation and is not devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation;

— order OHIM to pay the costs in the event of its being unsuccessful.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BIOPIETRA’ (application for registration No 5.658.893), for goods in Class 19.

Decision of the Examiner: Rejection of the application for registration.

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

Pleas in law: Infringement and incorrect application of Article 7(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.