ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 80/43

Appeal brought on 3 February 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal of 25 November 2009 in Case F-11/09, Marcuccio v Commission

(Case T-44/10 P)

2010/C 80/69

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— In any event, set aside in its entirety and without exception the order under appeal.

— Declare that the action at first instance, in relation to which the order under appeal was made, was admissible in its entirety and without any exception whatsoever.

— Allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings.

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 25 November 2009. That order dismissed as partly manifestly inadmissible and partly manifestly unfounded an action brought against the Commission’s refusal to assume responsibility for 100 % of the appellant’s medical expenses.

In support of his claims, the appellant alleges misinterpretation and misapplication of the principle that reasons must be given for a decision of an institution of the European Union, the concept of additional reasoning for a decision and the legal principles relating to the taking and assessment of evidence.

The appellant also alleges misinterpretation and misapplication of the concepts of a challengeable act and a decision which merely confirms an earlier decision.
EN Official Journal of the European Union C 100/49

Action brought on 29 January 2010 — El Corte Inglés v OHIM — Pucci International (PUCCI)

(Case T-39/10)

2010/C 100/74

Language in which the application was lodged: English

Parties

Applicant: El Corte Inglés, S.A. (Madrid, Spain) (represented by: M. López Camba, J. Rivas Zurdo and E. Seijo Veiguela, lawyers)

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

Other party to the proceedings before the Board of Appeal: Emilio Pucci International B.V. (Baarn, The 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 29 October 2009 in case R 173/2009-1;

— Order the defendant to pay the costs incurred by the applicant;

— Order the other party to the proceedings before the Board of Appeal to pay the costs incurred by the applicant.

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 “PUCCI”, for goods in classes 3, 9, 14, 18, 25 and 28

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

Mark or sign cited: Spanish trade mark registrations of the figurative mark ‘Emidio Tucci’, for goods in classes 3, 9, 14, 25 and 28; Spanish trade mark registration of the word mark ‘E. Tucci’, for goods in class 25; Community trade mark application for the figurative mark ‘Emidio Tucci’, covering inter alia goods in classes 3, 9, 14, 25 and 28.

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 Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly found that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation No 207/2009 as the Board of Appeal failed to conclude that the conditions for the application of this provision are fulfilled, as the earlier trade marks enjoy reputation in Spain in respect of articles related to fashion and the use of a similar sign by a third party would be detrimental to and take unfair advantage of such a reputation.
EN Official Journal of the European Union C 100/58

Action brought on 8 February 2010 — Victoria Sánchez v Parliament and Commission

(Case T-61/10)

2010/C 100/86

Language of the case: Spanish

Parties

Applicant: Fernando Marcelino Victoria Sánchez (Sevilla, Spain) (represented by: N. Domínguez Varela, lawyer)

Defendants: European Parliament and European Commission

Form of order sought

— A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation.

Pleas in law and main arguments

On 28 August 2008 the applicant submitted a petition to the Committee on Petitions of the Parliament relating to an alleged corruption network in Spain in the field of social security and public health. On 3 May 2009 the President of that committee informed him that no further action would be taken as regards his petition.

On 6 December 2009 the applicant sent a letter to the European Parliament and the European Commission, pursuant to Article 265 TFEU, calling upon them to act. In that letter he requested that:

— the European Parliament annul the decision of 3 May 2009 of the President of the Committee on Petitions and investigate the circumstances in which that decision was adopted;

— the European Commission also undertake an investigation into the administration of justice in Spain.

Since he did not receive a response within the time-limit laid down to that end, the applicant brought this action for failure to act.

In support of his claims, the applicant submits that his fundamental rights have been infringed, namely his right to submit a petition, his right to equality before the law and his right to not be discriminated against. He also submits that the conditions have been met for the defendant institutions to be found to have failed to act.
reject in full the application, based on the French trade mark “L.114” (F 1 312 700), for a declaration of invalidity of Community trade mark “L112” (EU 002349728) and permit registration of Community trade mark “L112” for the following goods:

“Class 5: Pharmaceutical, veterinary and sanitary preparations; medicinal products for internal use; food supplements for medical purposes; dietetic foodstuffs concentrates with a shellfish base (including chitosan) Class 29: Foodstuff concentrates with a shellfish base (including chitosan)”;

in the alternative reject the application, based on the French trade mark “L.114” (F 1 312 700), for a declaration of invalidity of Community trade mark “L112” (EU 002349728) inasmuch as it seeks a declaration of invalidity of the trade mark “L112” in Class 5 for the goods “Medicinal products for internal use; food supplements for medical purposes” and permit registration of Community trade mark “L112” for the following goods:

“Class 5: Sanitary preparations; medicinal products for internal use; food supplements for medical purposes; dietetic foodstuffs concentrates with a shellfish base (including chitosan) Class 29: Foodstuff concentrates with a shellfish base (including chitosan)”;

in the further alternative, reject the application, based on the French trade mark “L.114” (F 1 312 700), for a declaration of invalidity of Community trade mark “L112” (EU 002349728) inasmuch as it seeks a declaration of invalidity of the trade mark “L112” in Class 5 for the goods “Medicinal products for internal use” and permit registration of Community trade mark “L112” for the following goods:
EN Official Journal of the European Union C 113/73

Action brought on 1 March 2010 — Prionics v Commission and EFSA

(Case T-112/10)

2010/C 113/107

Language of the case: German

Parties

Applicant: Prionics AG (represented by: H. Janssen and M. Franz, lawyers)

Defendant: European Commission and European Food Safety Authority (EFSA)

Form of order sought

— annul the ‘Scientific Opinion on Analytical sensitivity of approved TSE rapid tests’ of EFSA and the Commission, in so far as that opinion does not currently recommend the use of two tests manufactured by the applicant, the Prionicsâ-Check LIA and the Prionicsâ-Check PrioSTRIP, for monitoring BSE;

— order EFSA and the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging EFSA’s Scientific Opinion of 10 December 2009 on Analytical sensitivity of approved TSE rapid tests (‘the EFSA Opinion’). That opinion recommends inter alia that the analytical sensitivity of two test systems manufactured by the applicant for BSE (Prionics®-Check LIA and Prionics®-Check PrioSTRIP) be re-assessed by appropriate experiments.

The applicant puts forward four pleas in law in support of its action.

In its first plea, the applicant alleges infringement of the principle of sound administration on the ground that the defendants base their recommendation in the EFSA Opinion on an incorrect assessment of the facts and on contradictory data.

In its second plea, the applicant alleges an infringement of the principle that the right to be heard must be granted in procedures which may result in measures having an adverse effect on a party. In that connection, the applicant furthermore alleges an infringement of the general legal principles of equal treatment and protection of legitimate expectations on the ground that, contrary to its own published administrative provisions, EFSA did not grant the applicant the right to be heard prior to publication of the EFSA Opinion.

In its third plea, the applicant alleges infringement of the general legal principles of equal treatment and protection of legitimate expectations on the ground that, contrary to its own published administrative provisions, EFSA provided no information in its opinion on the possibility of lodging an appeal against that opinion.

In its final plea, the applicant alleges infringement of the fundamental right of freedom to pursue a professional activity and the fundamental right of freedom to conduct a business on the ground that the EFSA Opinion was published without any consideration of the harmful consequences for the applicant.
EN Official Journal of the European Union C 113/58

Action brought on 22 February 2010 — Regione Puglia v Commission

(Case T-84/10)

2010/C 113/89

Language of the case: Italian

Parties

Applicant: Regione Puglia (Bari, Italy) (represented by: F. Brunelli, lawyer, A. Aloia, lawyer)

Defendant: European Commission

Form of order sought

— Annul the contested decision.

— Order the defendant to pay the costs, including a fixed amount for general costs.

Pleas in law and main arguments

By the present action, the Regione Puglia claims that the Court should annul Decision No C(2009) 10350 of the European Commission of 22 December 2009, concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF) allocated to the operational programme POR Puglia Obiettivo 1 2000-2006, and uphold only the provision made in Article 4 of that decision.

In support of its claims, the Regione Puglia relies on precise objections raised by it in relation to the accuracy and validity of the complaints made against it by the Commission, and on the unlawfulness and erroneous nature of the methods used by the Commission for evaluating the results of the audits carried out in 2007 and 2009.

More specifically, the Regione Puglia submits that the decision was taken notwithstanding that:

— the checks performed by the Commission and serving as a basis for the decision were not carried out appropriately and on time;

— the results arrived at by the Commission in respect of each priority and each measure, and in respect of each of the checks carried out, are not confirmed or supported by the documents lodged and examined and, in some cases, those results were obtained without the necessary consideration of the legislation applicable to the sector;

— in any event, as regards methodology, the evaluations carried out are not suitable for confirming and corroborating the Commission’s conclusions, which, moreover, appear presented as self-evident in so far as they are not sufficiently reasoned and/or proved.

Nonetheless, the Commission took no account whatsoever of:

— the various results of the audits performed by the European Court of Auditors and the Ministry for the Economy and Finance of the Italian Republic;

— the observations and objections submitted from time to time by the Regione Puglia in a detailed, substantiated and timely manner, in response to the complaints and requests made by the Commission; and, furthermore,
EN Official Journal of the European Union C 113/66

Action brought on 2 March 2010 — Meica v OHIM — Tofutown.com (TOFUKING)

(Case T-99/10)

2010/C 113/99

Language in which the application was lodged: German

Parties

Applicant: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG (Edewecht, Germany) (represented by: S. Russlies, 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: Tofutown.com GmbH (Wiesbaum/Vulkaneifel, 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) (OHIM) of 7 January 2010 (Case R 63/2009-4);

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Tofutown.com GmbH

Community trade mark concerned: the word mark ‘TOFUKING’ for goods in Classes 29, 30 and 32 (Application No 5 027 016)

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

Mark or sign cited in opposition: the German word mark ‘King’ (trade mark No 30 404 434), the Community word mark ‘Curry King’ (trade mark No 2 885 077) and the German word mark ‘Curry King’ (trade mark No 39 902 969), all three of which were registered for goods in Classes 29 and 30

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1) as there is a likelihood of confusion between the marks at issue

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 148/33

Action brought on 10 March 2010 — USFSPEI and Others v Council

(Case T-122/10)

2010/C 148/58

Language of the case: French

Parties

Applicants: Union syndicale fédérale des services publics européens et internationaux (USFSPEI) (Brussels, Belgium), Giuseppe Calo (Luxembourg, Luxembourg), Jean-Pierre Tytgat (Mamer, Luxembourg) (represented by: J.-N. Louis, A. Coolen, B. Cambier, L. Renders, S. Pappas, avocats)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009 adjusting with effect from 1 July 2009 the remunerations and pensions of officials and other servants of the European Union and the correction coefficients applied thereto, which is nevertheless to remain in force until the Council has adopted a new regulation, in accordance with the proposal of the Commission, to take effect on 1 July 2009;

— order the Council to pay the applicants Calo and Tytgat, as well as other officials and servants of the European Union, arrears in remuneration and pensions which they are entitled to from 1 July 2009 onwards, together with default interest from the date those arrears were due, at the rate laid down by the ECB for its main refinancing operations, increased by two percentage points;

— order the Council to pay the USF one Euro by way of symbolic compensation for the moral harm suffered through the wrongful act in the form of the adoption of the illegal Regulation No 1296/2009 of 23 December 2009.

Pleas in law and main arguments

By the present action, the applications seek the annulment of Council Regulation (EU, EURATOM) No 1296/2009 of 23 December 2009 adjusting with effect from 1 July 2009 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto. (1)

In support of their action, the applicants allege that Regulation No 1296/2009 is illegal, that there has been an abuse of process and an infringement of the principles of sincere cooperation and coherence flowing from Article 4(3) TEU.

The applicants also submit that there has been an infringement of Articles 65 and 65a of the Statute, Articles 1 and 3 of Annex XI thereof as well as the principle of parallel action, the principle of legitimate expectations and the principle of ‘patere legem quam ipse fecisti’.

Finally, the applicants submit that there has been an infringement of the obligation to state reasons and the principle of proportionality.

(1) OJ 2009 L 348, p.10
EN Official Journal of the European Union C 148/47

Action brought on 8 April 2010 — Barilla v OHIM — Brauerei Schlösser (ALIXIR)

(Case T-157/10)

2010/C 148/76

Language in which the application was lodged: English

Parties

Applicant: Barilla G. e R. Fratelli SpA (Parma, Italy) (represented by: A. Colmano, G. Sironi and A. Vanzetti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Brauerei Schlösser GmbH (Düsseldorf, Germany)

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 25 January 2010 in case R 820/2009-2;

— Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the Community trade mark concerned;

— Alternatively, remit the case to the defendant so that it may dismiss the opposition; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “ALIXIR”, for goods, among others, in class 32

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 word mark “Elixeer”, for goods in class 32

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 Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly found that there was a likelihood of confusion between the trade marks concerned.
Official Journal of the European Union

Judgment of the General Court of 26 April 2010 — DTL v OHIM — Gestión de Recursos y Soluciones Empresariales (Solaria)

(Case T-188/10)

(2010/C 161/86)

Language of the case: Spanish

Parties

Applicant: DTL Corporación, S.L. (Madrid, Spain) (represented by: C. Rueda Pascual, 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: Gestión de Recursos y Soluciones Empresariales, S.L. (Pamplona, Spain)

Form of order sought

— annulment of the decision of the Second Board of Appeal of OHIM of 17 February 2010 in Case R 767/2009-2;

— replace it by another which rejects the opposition brought by GESTIÓN DE RECURSOS Y SOLUCIONES EMPRESARIALES, S.L. against the Community trade mark No 5153325 ‘SOLARIA’ permitting that Community trade mark to be registered not only in Class 41, but also for all the services applied for in Classes 37 and 42; and order the opposing party to pay the costs of the opposition and the appeal before OHIM; and

— order OHIM and the other parties to the proceedings who oppose this action to pay the costs thereof.

Pleas in law and main arguments

Applicant for a Community trade mark: DTL Corporación, S.L.

Community trade mark concerned: Figurative mark containing the word element ‘SOLARIA’ (Application No 5 153 325) for services in Classes 37, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Gestión de Recursos y Soluciones Empresariales, S.L.

Mark or sign cited in opposition: Spanish figurative mark containing the word element ‘SOLARTIA’ (No 2 689 747) for services in Classes 37 and 42.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 179/51

Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS)

(Case T-204/10)

2010/C 179/88

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (Munich, Germany)

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 11 February 2010 in case R 238/2009-2;

— Annul the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in case 990 C;

— Dismiss the request introduced by the other party to the proceedings before the Board of Appeal for a declaration of invalidity of the applicant's CTM No 1327410 COLOR FOCUS to the extent the request is based on the Community trade mark FOCUS No 453720;

— Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘COLOR FOCUS’ for goods in class 3 — Community trade mark registration No 1327410

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 453720 of the word mark ‘FOCUS’ for goods and services in classes 3, 6, 7, 9, 14, 16, 21, 25, 28, 29, 32, 33, 35, 38, 39, 41, 42; German mark registration No 39407564 of the word mark ‘FOCUS’, for a wide variety of goods and services in a total of 24 classes

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision violates Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation (EC) No 207/2009 (hereinafter ‘the CTMR’) in finding a likelihood of confusion between ‘COLOR FOCUS’ and ‘FOCUS’. According to the applicant, the Board of Appeal failed by not providing a specific assessment of such a finding, which requires an analysis of the degree of distinctiveness and of the degree of similarity, in a way that the contested decision is lacking an essential element in its reasoning.