ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 109/32

Action brought on 23 February 2012 — Duff Beer v OHIM — Twentieth Century Fox Film (Duff)

(Case T-87/12)

2012/C 109/64

Language in which the application was lodged: German

Parties

Applicant: Duff Beer UG (Eschwege, Germany) (represented by: N. Schindler, lawyer)

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

Other party to the proceedings before the Board of Appeal: Twentieth Century Fox Film Corporation (Los Angeles, United States of America)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 December 2011 (Case R 0456/2011-4) and the decision of the Opposition Division of OHIM of 14 January 2011 (No B 1 603 771);

— order OHIM to bear its own costs and to pay the costs incurred by the applicant;

— in the alternative, stay the proceedings until the delivery of final decisions on the application for revocation pending before OHIM under the reference number 000005227 C and the nullity of Community trade mark No 001341130 declared by the Court of Commerce of Brussels under the reference numbers 2009/6122 and 2009/6129.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark ‘Duff’ in the colours black, white and red for goods and services in Classes 32, 35 and 41 (application No 8 351 091).

Proprietor of the mark or sign cited in the opposition proceedings: Twentieth Century Fox Film Corporation

Mark or sign cited in opposition: the figurative mark ‘Duff BEER’ (Community trade mark No 1 341 130) for goods in Class 32

Decision of the Opposition Division: the opposition was upheld in part for goods and services in Classes 32 and 35

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(2)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue and infringement of rule 20(7)(c) in conjunction with rule 50(1) of Regulation No 2868/95 due to the Board of Appeal’s incorrect exercise of its discretion as regards the applicant’s application to suspend the appeal proceedings.
EN Official Journal of the European Union C 109/27

Action brought on 17 February 2012 — Divandari v Council

(Case T-70/12)

2012/C 109/56

Language of the case: English

Parties

Applicant: Ali Divandari (Tehran, Iran) (represented by: S. Zaiwalla, P. Reddy and F. Zaiwalla, Solicitors, M. Brindle, QC (Queen's Counsel), and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2011/783/CFSP (1) and Council Implementing Regulation (EU) No 1245/2011 (2) in so far as they apply to the applicant; and

— Declare Articles 19(1)(b) and 20(1)(b) of Council Decision 2010/413/CFSP (3) and Article 16(2) of Council Regulation (EU) No 961/2010 (4) inapplicable to the applicant;

— Order that Article 60(2) of the Statute of the Court of Justice of the European Union has no application to the annulment of the applicant’s designation; and

— Order the defendant to pay the costs of the application.

Pleas in law and main arguments

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

1. First plea in law, alleging that the applicant is not chairman of Bank Mellat, as wrongly alleged by the defendant.

2. Second plea in law, alleging that the substantive criteria for designation under Council Decision 2010/413/CFSP and Council Regulation (EU) No 961/2010 are not met in respect of the applicant and/or the defendant committed a manifest error of assessment in determining whether or not those criteria were met when reviewing the applicant’s designation.

3. Third plea in law, alleging that the substantive criteria for Bank Mellat’s designation are not met and/or the defendant committed a manifest error of assessment in determining whether or not those criteria were met when reviewing the applicant’s designation.

4. Fourth plea in law, alleging that the continued designation of the applicant is in violation of his human and fundamental rights and the principle of proportionality.

5. Fifth plea in law, alleging that in continuing the applicant’s designation, the defendant has breached the procedural requirement: (i) to give adequate reasons; and (ii) to respect the right of defence and the right to effective judicial protection.

6. Sixth plea in law, alleging that in so far as the applicant’s application in case T-497/10 Divandari Bank v Council is successful, or Bank Mellat succeeds in its application in case T-496/10 Bank Mellat v Council, this application must also succeed.

(1) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71)

(2) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11)

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

(4) Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1)
EN Official Journal of the European Union C 109/18

Action brought on 30 January 2012 — European Dynamics Luxembourg and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis v European Police Office (Europol)

(Case T-40/12)

2012/C 109/40

Language of the case: Greek

Parties

Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by V. Khristianos, lawyer)

Defendant: European Police Office (Europol)

Form of order sought

By this action the applicants claim that the General Court should:

— annul the decision dated 22 Νovember 2011 of the European Police Office (Europol), whereby Europol excluded the consortium’s bid by which the applicants participated in the open tendering procedure No D/C3/1104, and

— order EUROPOL to pay the applicants’ entire costs.

Pleas in law and main arguments

The applicants consider that the contested decision should be annulled, under Article 263 TFEU and put forward the following argument, which encompasses three considerations:

First, Europol without any justification excluded the applicants’ bid, maintaining that the applicants altered the technical and financial terms of their bid, with the consequence that Europol has no legal basis for its decision to exclude the applicants.

Second, Europol had no justification for its complaint to the applicants that their bid was inaccurate and for excluding it, when it was Europol which caused and consented to or condoned the existence of vagueness and lack of clarity as to the meaning of the terms ‘out of the box’ and ‘customisation’, contrary to the principle of transparency.
Third plea in law: unlawful interpretation and application of the first and third indents of Article 4(2) of Regulation (EC) No 1049/2001 (1)

By its third plea in law, the applicant submits that the Commission’s interpretation and application of the exceptions listed in the first and third indents of Article 4(2) of Regulation No 1049/2001 were unlawful. In its view, the Commission failed to recognise the relationship between the rule and the exceptions thereto and proceeded on the basis of a much too broad understanding of ‘protection of investigations’ and of the term ‘commercial interests’.
EN Official Journal of the European Union C 118/32

Action brought on 21 February 2012 — Robert Group v OHIM — Hardford (Pierre Robert)

(Case T-86/12)

2012/C 118/53

Language in which the application was lodged: English

Parties

Applicant: Pierre Robert Group AS (Oslo, Norway) (represented by: E. Ullberg and M. Plogell, lawyers)

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

Other party to the proceedings before the Board of Appeal: Hardford AB (Limhamn, Sweden)

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 7 December 2011 in case R 2463/2010-1, and consequently order OHIM to evaluate the proof of existence, validity and scope of the earlier mark that the applicant has submitted;

— Or, alternatively, alter the decision of the First Board of Appeal by a decision of its own and refuse the registration of Community trade mark No 8541849 ‘Pierre Robert’; and

— Order the defendant to pay the costs of the proceedings, including those incurred in the proceedings before the Opposition Division and the First Board of Appeal of OHIM.

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 word mark ‘Pierre Robert’, for goods and services in classes 3, 5 and 44 — Community trade mark application No 8541849

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

Mark or sign cited in opposition: Swedish trade mark registration No 166274 of the figurative mark ‘Pierre Robert’, for goods in classes 3, 5 and 25

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 50(1) of Commission Regulation No 2868/95 and Articles 76, 8 and 8(2)(c) of Council Regulation No 207/2009, as the Board of Appeal: (i) has neglected its right to examine the facts of its own motion, and take into consideration facts that are apparently likely to affect the outcome of the opposition; (ii) erred in law when it did not consider that ‘Pierre Robert’ is a well known mark; (iii) failed when not considering the evidence, Annex 1, which was submitted in connection with the filing of the opposition; and (iv) failed when not accepting the certificate from the Swedish Patent and Registration Office filed before the decision of the opposition division.
EN Official Journal of the European Union C 194/26

Action brought on 2 May 2012 — PAN Europe v Commission

(Case T-192/12)

2012/C 194/43

Language of the case: English

Parties

Applicant: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: J. Rutteman, lawyer)

Defendant: European Commission

Form of order sought

— Declare the Commission’s Decision of 9 March 2012, which found a request made by the applicant for internal review to be inadmissible, contrary to Regulation (EC) No 1367/2006/EC (1) and the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’);

— Annul the Commission’s Decision of 9 March 2012;

— Instruct the Commission to assess, nonetheless, the substance of the request for internal review, within a period of time determined by the Court; and

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant erred when it found that the applicant did not comply with the conditions of eligibility set out in Article 11 of Regulation (EC) No 1367/2006, as the applicant already existed for more than two years when it made its request for internal review.

2. Second plea in law, alleging that the defendant erred when it stated that Implementing Regulation (EU) No 1143/2011 (2) cannot be considered an administrative act within the meaning of Article 10 of Regulation (EC) No 1367/2006, as it is defined in Article 2(1)(g) of that Regulation, as the decision to approve prochloraz is sufficiently individual in its effects and content to make it an administrative act as is meant in Article 10(1) of Regulation (EC) No 1367/2006.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)

(2) Commission Implementing Regulation (EU) No 1143/2011 of 10 November 2011 approving the active substance prochloraz, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 and Commission Decision 2008/934/EC (OJ 2011 L 293, p. 26)
—

Annul Council Regulation (EU) no 1344/2011 of 19 December 2011 suspending the autonomous Common Customs Tariff duties on certain agricultural, fishery and industrial products and repealing Regulation (EC) No 1255/96 (OJ L 349, p. 1), insofar as it suspends the import duty levied on rutile titanium dioxide containing by weight 90 % or more of titanium dioxide, not more than 4 % of aluminium hydroxide and not more than 6 % of silicon dioxide, under CN code 3206 11 00;
1.

First plea in law, alleging an infringement of fundamental rights and procedural guarantees, in particular rights, the duty to state reasons and the principle of effective judicial protection, in so far as the applicant did not receive formal notification of his inclusion on the list of persons sanctioned and or the grounds for his inclusion in the contested acts and were not sufficient to justify the sanctions.
EN Official Journal of the European Union C 138/19

Action brought on 14 March 2012 — ANKO v Commission

(Case T-118/12)

2012/C 138/36

Language of the case: Greek

Parties

Applicant: ANKO Anonimos Etairia Antiprosopion, Emporiou kai Viomikhanias (Athens, Greece) (represented by: V. Khristianos, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— declare that the failure by the Commission to pay the balance of the financial support for the applicant in respect of the contract for the project ‘PERceptive Spaces promoting iNdependent Aging (PERSONA)’, amounting to EUR 6 752,74, constitutes a breach of its contractual obligations;

— order the Commission to pay to the applicant the sum of EUR 6 752,74, in respect of the expenditure incurred by the applicant during the fourth reference period of the PERSONA project, together with the interest provided for by paragraph 7 of Clause II.28 of Annex II to the principal contract from service of the present action;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action concerns liability of the Commission under contract No 045459 for the carrying out of the project ‘PERceptive Spaces promoting iNdependent Aging (PERSONA)’, pursuant to Article 272 TFEU.

Specifically, the applicant submits that, although it duly performed its contractual obligations in full, the Commission suspended payment to it without being entitled to do so and in breach of the foregoing contract and of the principle of good faith. For that reason, the applicant submits that the Commission must pay to it the sum of EUR 6 752,74, together with the interest provided for by paragraph 7 of Clause II.28 of Annex II to the principal contract.
EN Official Journal of the European Union C 200/20

Action brought on 23 May 2012 — Elitaliana v Eulex Kosovo and Starlite Aviation Operations

(Case T-213/12)

2012/C 200/40

Language of the case: Italian

Parties

Applicant: Elitaliana SpA (Rome, Italy) (represented by: R. Colagrande, lawyer)

Defendants: Eulex Kosovo — European Union Rule of Law Mission (Pristina, Republic of Kosovo) and Starlite Aviation Operations (Dublin, Ireland)

Form of order sought

The applicant claims that the Court should:

— Annul the measures adopted by Eulex — the content and date of which are unknown to the applicant — which resulted in the award of the contract in tendering procedure ‘EuropeAid/131516/D/SER/XK — Helicopter Support to the EULEX Mission in Kosovo (PROC/272/11)’ to the company Starlite Aviation Operations, communicated by Eulex by letter of 29 March 2012 (received on that date by e-mail), and all previous and subsequent measures, whether related or subordinate, in particular, if appropriate, Note 2012-DAS-0392 of 17 April 2012, by which Eulex refused to grant the applicant access to the tendering documents requested on 2 April 2012;

— Order Eulex to pay to the applicant compensation for the loss suffered (in a specific form or commensurate amount) as set out at paragraphs 37 et seq. [of the application];

— Order Eulex to pay the costs.

Pleas in law and main arguments

The present action is brought principally against the measures adopted by Eulex which resulted in the award of the contract in tendering procedure ‘EuropeAid/131516/D/SER/XK — Helicopter Support to the EULEX Mission in Kosovo (PROC/272/11)’ to the company Starlite Aviation Operations and all previous and subsequent measures, whether related or subordinate. The applicant claims compensation for the resulting loss.

The applicant relies on a single plea in law in support of its claim, alleging infringement and/or misapplication of the Notice published on 18 October 2011, with reference to Articles 46 et seq. of Directive 18/2004/EC; (1) infringement of the general principles of transparency, proportionality and equal treatment, laid down in the ‘Practical Guide to contract procedures for EU external actions’ (Prag), to which the tendering procedure was subject; and infringement of the general principle that effective competition should be guaranteed with regard to the standards to be laid down for the service to be procured.

It is submitted in that regard that the contract was awarded to a tenderer that did not posses the technical requirements stipulated in the Notice.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.
EN Official Journal of the European Union C 243/26

Action brought on 5 June 2012 — Uralita v Commission

(Case T-250/12)

2012/C 243/46

Language of the case: English

Parties

Applicant: Uralita, SA (Madrid, Spain) (represented by: K. Struckmann, lawyer and G. Forwood, Barrister)

Defendant: European Commission

Form of order sought

— Annul Article 1(2) of the Decision of the European Commission C(2012) 1965 of 27 March 2012 amending Decision C(2008)2626 of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement (Case COMP/38.695 — SODIUM CHLORATE), in so far as it imposes a fine of EUR 4 231 000 on the applicant;

— Article 2 of the Commission’s decision C(2012) 1965 of 27 March 2012 — Case COMP/38.695 — Sodium Chlorate; and

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that the decision to impose a fine after the expiry of the limitation period contained in Article 25(1) of Council Regulation (EC) No 1/2003 (1), and to retain the interest accrued on this sum, was unlawful.

2. Second plea in law, alleging, in the alternative, that it was unlawful for the Commission to withhold the amount of the fine imposed by Decision C(2012) 1965 of 27 March 2012, including interest, before the fine became due.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)
EN Official Journal of the European Union C 209/13

Action brought on 30 May 2012 — Jyoti Ceramic Industries v OHIM — DeguDent (ZIECON)

(Case T-239/12)

2012/C 209/22

Language in which the application was lodged: German

Parties

Applicant: Jyoti Ceramic Industries PVT. Ltd (Nashik, India) (represented by: R. Egerer, D. Jochim and A. Kolb, lawyers)

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

Other party to the proceedings before the Board of Appeal: DeguDent GmbH (Hanau-Wolfgang, 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 21 March 2012 in Case R 2546/2010-1;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Jyoti Ceramic Industries

Community trade mark concerned: Figurative mark ‘ZIECON’ for goods in Classes 5, 10 and 40 (application No 8 272 271)

Proprietor of the mark or sign cited in the opposition proceedings: DeguDent GmbH

Mark or sign cited in opposition: Word mark ‘CERCON’ for goods in Classes 5, 9 and 10

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal allowed and registration refused

Pleas in law:

— Infringement of Article 8(1)(b) of Regulation No 207/2009
3.

Third plea in law, alleging that the contested measures infringe the rights of defence and the right to a fair hearing in that they do not provide the applicant with the possibility to effectively exercise its rights of defence, including the right to be heard. Given the close relationship between the rights of the defence and the right to effective judicial review, the applicant’s right to effective judicial remedy has also been infringed.
EN Official Journal of the European Union C 273/14

Action brought on 3 July 2012 — Deutsche Bank v OHIM (Passion to Perform)

(Case T-291/12)

2012/C 273/24

Language of the case: English

Parties

Applicant: Deutsche Bank (Frankfurt am Main, Germany) (represented by: R. Lange, T. Götting 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 24 April 2012 in case R 2233/2011-4; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: International registration designating the European Community of the word mark ‘Passion to Perform’ for goods and services in classes 35, 36, 38, 41 and 42 — Community trade mark application No W 1066295

Decision of the Examiner: Refused protection of the mark for the European Community

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009.
1.

As regards the imposition of the penalty for non-delivery of goods, the applicant states that, in fact, the goods actually delivered amounted to 498,819 tonnes, namely, 1,435 tonnes less than that laid down in the call for tenders. In that connection, the applicant relies on the 1 % tolerance laid down in Article 17 of Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid (OJ 1997 L 346, p. 23). As regards Article 15 of that regulation, the applicant states that, in the present case, it is a fact that the goods actually delivered to the beneficiary amounted to 498,819 tonnes, as is apparent from the delivery certificate and, therefore, any subsequent event resulting in a reduction in the amount of goods could not have been attributable to the applicant.