ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 152/25

Action brought on 16 March 2011 — Reddig v OHMI — Morleys (Shape of knife handles)

(Case T-164/11)

2011/C 152/45

Language in which the application was lodged: English

Parties

Applicant: Reddig GmbH (Drebber, Germany) (represented by: C. Thomas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Morleys Ltd (Preston, United Kingdom)

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 15 December 2010 in case R 1072/2009-2;

— Order the defendant to pay the costs incurred in the proceedings before the General Court and order the (potential) intervener to pay the costs of the administrative proceedings before the Board of Appeal; and

— Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark ‘dolphin’, for goods in classes 6, 8 and 20 — Community trade mark registration No 2630101

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 party requesting the declaration of invalidity grounded its request on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation (EC) No 207/2009, and on that the proprietor had acted in bad faith when failing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Accepted the request for a declaration of invalidity and declared the registration of the Community trade mark invalid in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(e)(ii) of Council Regulation No 207/2009, the Board of Appeal incorrectly interpreted this article and incorrectly interpreted the requirements of the Lego decision of the Court of the European Union (Judgement of the Court of 14 September 2010, Lego Juris v OHIM, C-48/09 P).
EN Official Journal of the European Union C 145/34

Action brought on 17 March 2011 — Rivella International v OHIM — Baskaya di Baskaya & C. (BASKAYA)

(Case T-170/11)

2011/C 145/57

Language in which the application was lodged: German

Parties

Applicant: Rivella International AG (Rothrist, Switzerland) (represented by: C. Spintig, U. Sander and H. Förster, lawyers)

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

Other party to the proceedings before the Board of Appeal: Baskaya di Baskaya & C. s.a.s. (Grosseto, Italy)

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 10 January 2011 in Case R 534/2010-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Baskaya di Baskaya & C. s.a.s.

Community trade mark concerned: Figurative mark including word element ‘BASKAYA’ for goods in Classes 29, 30 and 32.

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

Mark or sign cited in opposition: International registered figurative mark including the word element ‘Passaia’ for goods in Class 32.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 42(2) and (3) of Regulation (EC) No 207/2009, (1) in that the Board of Appeal failed to apply Article 5 of the German-Swiss Agreement of 13 April 1892 on mutual protection of patents, trade marks and designs and for that reason erred in law by failing to have regard to the proof of use adduced by the applicant.

(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 152/30

Action brought on 24 March 2011 — Yordanov v OHIM — Distribuidora comercial del frio (DISCO DESIGNER)

(Case T-189/11)

2011/C 152/53

Language in which the application was lodged: German

Parties

Applicant: Peter Yordanov (Rousse, Bulgaria) (represented by: T. Walter, lawyer)

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

Other party to the proceedings before the Board of Appeal: Distribuidora comercial del frio, SA (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2011 in Case R 803/2010-2;

— 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: Word mark ‘DISCO DESIGNER’ for goods in Classes 11, 19 and 20.

Proprietor of the mark or sign cited in the opposition proceedings: Distribuidora comercial del frio, SA.

Mark or sign cited in opposition: Figurative mark including the word element ‘DISCO’ for goods in Class 11.

Decision of the Opposition Division: To uphold the opposition.

Decision of the Board of Appeal: To dismiss the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question and the Board of Appeal incorrectly held that the goods at issue were identical.

(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 194/16

Action brought on 18 April 2011 — TeamBank v OHIM — Fercredit Servizi Finanziari (f@ir Credit)

(Case T-220/11)

2011/C 194/26

Language in which the application was lodged: German

Parties

Applicant: TeamBank AG Nürnberg (Nuremberg, Germany) (represented by: T. Kiphuth, H. Lindner and D. Terheggen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Fercredit Servizi Finanziari SpA (Rome, Italy)

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 3 February 2011 in Appeal R 719/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘f@ir Credit’ for services in Class 36 (Registration No 6 947 766).

Proprietor of the mark or sign cited in the opposition proceedings: Fercredit Servizi Finanziari SpA.

Mark or sign cited in opposition: Figurative mark ‘FERCREDIT’ for goods and services in Classes 6, 7, 12, 14, 16, 18, 25, 35, 36, 39, 41, 42, 43 and 44 (Community trade mark Nr 3 749 801), the opposition being brought against the registration of services in Class 36.

Decision of the Opposition Division: Opposition upheld.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is no likelihood of confusion between the opposing marks.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version), (OJ 2009 L 78, p. 1).
2.

Second plea in law, alleging that the defendants do not have the power to impose these restrictive measures on the applicant; alternatively, his inclusion is based on a manifest error of assessment, as the defendants erred in concluding that the restrictive measures were justified as regards the applicant.
The appellant sought three orders, namely that the EIB should be ordered to: (1) desist from the mobbing; (2) pay compensation for the personal, material and non-material damage; and (3) pay the costs of the proceedings.

The Tribunal failed to rule on the first claim.

It rejected the second claim after misconstruing it, because the appellant claimed compensation as a result of the unlawful conduct on the part of the EIB, irrespective of the manner in which that conduct may classified when the request that the claim be viewed as a whole is considered.

In any event, the appellant does not consider the claim to be inadmissible on the ground that there is no ‘act capable of causing injury’ to which a claim for compensation could be linked, since the employment relationship is private and what is at issue here are not administrative acts but tortious act.

The third claim was rejected by the Tribunal on the incorrect assumption that the appellant had not applied for the EIB to pay the costs of the proceedings.
—

order the Ombudsman to pay to the applicant on a monthly basis from May 2011 to March 2026 the net amounts corresponding to the fixed salaries for AD officials from grade AD 9, step 2, second year, taking account of the normal career path of an official of the same grade, together with corresponding contributions to the pension fund in favour of the applicant as well as sickness fund contributions;
3.

Third plea in law, alleging infringement of the rules of the Treaty relating to the freedom to provide services in so far as the unlawful nature of the charge financing that aid scheme is established by reason of the fact that the detailed rules for the territorial assessment are contrary to the principle of freedom to provide services. The applicants submit that the partial reimbursement, ordered by the contested decision, cannot in any event alter the nature of the aid scheme in question and retroactively make it consistent with the Treaty.
EN Official Journal of the European Union C 238/20

Action brought on 31 May 2011 — Ewald v OHIM — Kin Cosmetics (Keen)

(Case T-280/11)

2011/C 238/36

Language in which the application was lodged: German

Parties

Applicant: Rita Ewald (Frauenwald, Germany) (represented by: S. Reinhardt, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kin Cosmetics, SA (Sant Feliu de Guixols, Spain)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of OHIM of 3 March 2011 in Case R 1383/2010-1;

— Reject the opposition filed at OHIM on 24 July 2008 under No B 1359944 by KIN COSMETICS, SA against Community trade mark application No EM 006 498 621‘Keen’;

— In the alternative, in the event that the Court cannot itself reach a decision under the second head of claim, refer the case back to OHIM for a fresh decision;

— Order the defendant and KIN COSMETICS, SA, in so far as it decides to participate in the proceedings, to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Keen’ for goods and services in Classes 3 and 44 — application No 6 498 621

Proprietor of the mark or sign cited in the opposition proceedings: Kin Cosmetics, SA

Mark or sign cited in opposition: the Community and national word and figurative marks ‘KIN’, ‘KinBooKs’, ‘KINWORKS’ and ‘KINSTYLIUM’ for goods and services in Classes 3, 5, 35 and 44

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

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.
1.

First plea in law: the form of the decision is disproportionate The contested decision infringes the principle of proportionality since it constitutes the first measure of investigation adopted in relation to the applicant and the applicant was willing to provide information. — It is true that Council Regulation (EC) No 1/2003 (1) does not provide for a hierarchical relationship between simple requests for information and a decision requiring information. This does not change the fact, however, that the principle of proportionality is to be observed when opting for a measure of investigation. — Compared with a decision requiring information pursuant to Article 18(3) of Regulation No 1/2003 a request for information pursuant to Article 18(2) of that regulation is the more lenient option and also constitutes an effective method in relation to undertakings which are willing to provide information.
EN Official Journal of the European Union C 252/38

Action brought on 24 June 2011 — Italiana Calzature v OHIM — Vicini (Giuseppe GIUSEPPE ZANOTTI DESIGN)

(Case T-336/11)

2011/C 252/85

Language in which the application was lodged: Italian

Parties

Applicant: Società Italiana Calzature SpA (Milan, Italy) (represented by: A. Rapisardi and C. Ginevra, lawyers)

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

Other party to the proceedings before the Board of Appeal: Vicini SpA (San Mauro Pascoli, Italy)

Form of order sought

— Annul the decision of the Second Board of Appeal of 8 April 2011 in Case No R 0634/2010-2 and, accordingly, uphold the decision of the Opposition Division of 5 March 2010 relating to Opposition No 1350711.

— Order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: VICINI SpA

Community trade mark concerned: Figurative mark containing the word element ‘GIUSEPPE’ (application for registration No 6.513.386), for goods and services in Classes 18 and 25

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

Mark or sign cited in opposition: Community word mark ‘ZANOTTI’ (No 244.277), for goods and services in Class 25, and Italian figurative mark containing the word element ‘Zanotti’, for goods in Classes 18 and 25

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Opposition rejected in its entirety

Pleas in law: Misinterpretation and misapplication of Article 8(2)(b) of Regulation No 207/2009 on the Community trade mark.
1.

First plea in law: infringement of Article 18(3) of Regulation (EC) No 1/2003 (1) The contested decision infringes Article 18(3) of Regulation No 1/2003 since it does not give sufficient detail on the purpose of the investigation and requests company information which is not ‘necessary’, within the meaning of Article 18 of Regulation No 1/2003, to investigate the allegations made. — The applicant was not informed in the contested decision or at any other stage of the investigation procedure of what exactly is being investigated. The decision thus infringes the duty in Article 18(3) of Regulation No 1/2003 to communicate the purpose of the investigation. According to settled case-law of the Courts of the European Union, sufficient detail of allegations needs to be given so that the addressees and Courts can assess the necessity of the information requested for the investigation. — The decision largely requests the resubmission of information which has already been provided to the Commission in response to earlier requests for information. The information which is already at the Commission's disposal is not ‘necessary’ information within the meaning of Article 18(3) of Regulation No 1/2003. — There is no apparent link between the requested information and the Commission's ‘suspicion’. The Commission misused its powers under Article 18(3) of Regulation No 1/2003 to go on a general ‘fishing expedition’ in relation to the applicant. For such general investigations of the market the Commission has Article 17 of Regulation No 1/2003 at its disposal. — The Commission goes beyond its powers in Article 18(3) of Regulation No 1/2003 since, in the contested decision, it requires the applicant to analyse and evaluate the requested information.
EN Official Journal of the European Union C 269/53

Action brought on 6 July 2011 — Hand Held Products v OHIM — Orange Brand Services (DOLPHIN)

(Case T-361/11)

2011/C 269/117

Language in which the application was lodged: English

Parties

Applicant: Hand Held Products, Inc. (Wilmington, United States) (represented by: J. Güell Serra and M. Curell Aguilà, lawyers)

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

Other party to the proceedings before the Board of Appeal: Orange Brand Services Ltd (Bristol, United Kingdom)

Form of order sought

— Partially annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1443/2010-1, and reject CTM application No 5046231; and

— Order the defendant to pay the costs.

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 ‘DOLPHIN’, for inter alia goods in class 9 — Community trade mark application No 5046231

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

Mark or sign cited in opposition: Community trade mark registration No 936229 of the word mark ‘DOLPHIN’, for goods in class 9

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Partially annulled the decision of the Opposition division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed to make a global analysis of the relevant factors but merely rejected the opposition on the basis that the goods are different, establishing minimal differences between them, and without giving the adequate weight in the comparative analysis to the identity in the signs ‘DOLPHIN’.
EN Official Journal of the European Union C 252/44

Action brought on 1 July 2011 — Bimbo v OHIM — Grupo Bimbo (GRUPO BIMBO)

(Case T-357/11)

2011/C 252/95

Language in which the application was lodged: Spanish

Parties

Applicant: Bimbo (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grupo Bimbo, SAB de CV (Mexico City, Mexico)

Form of order sought

— Vary the decision of the First Board of Appeal of 14 April 2011, in accordance with Article 65(3) of the CTMR, on account of infringement of Article 8(5) CTMR, and refuse registration of the trade mark concerned — figurative mark 5.025.598 ‘GRUPO BIMBO’ — in its entirety for all the goods and services applied for;

— In the alternative, and only in the event that the previous claim is rejected, annul the decision of the First Board of Appeal of 14 April 2011 on account of infringement of Article 8(5) CTMR;

— Order the defendants to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Grupo Bimbo, S.A.B de C.V.

Community trade mark concerned: Figurative mark including the word element ‘GRUPO BIMBO’ (application No 5.025.598) for goods and services in Classes 5, 29, 30, 31, 32, 35 and 43.

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

Mark or sign cited in opposition: Spanish word mark ‘BIMBO’ (No 2.689.432) for goods in Classes 5, 29 and 30, and various Spanish figurative marks (No 464.785, No 2.244.562, No 2.244.563 and No 2.255.097) which include the word element ‘BIMBO’, for goods and services in Classes 29, 30, 31, 32, 35 and 42.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Decision under appeal annulled in part.

Pleas in law: Incorrect interpretation and application of Article 8(5) of Regulation No 207/2009 on the Community trade mark, since, following a finding that the BIMBO trade marks cited in opposition are trade marks with a reputation in the Spanish market and that the mark applied for ‘GRUPO BIMBO’ is virtually identical to the opposing marks, the application for that trade mark was granted in part, on the basis that it had not been proved that unfair advantage was taken of the repute or distinctive character of the opposing marks or that there was any risk to that repute or distinctive character.
1.

Firstly, the said Article stipulates that the anti-dumping duty for exporters or producers which have made themselves known but were not included in the sample shall not exceed the weighted average dumping margin established for parties selected in the sample, whereby zero and de minimis margins shall be disregarded. By imposing an anti-dumping duty of 15,5 % on SRF, the contested Regulation violates this rule since the weighted average dumping margin for the parties selected in the sample, whose dumping margins are not zero or de minimis is lower than 15,5% ; and
2.

Second plea in law, alleging infringement of the duty to state reasons laid down in the second paragraph of Article 296 TFEU. The applicant complains that the Council has taken restrictive measures affecting him, without having informed him of the grounds thereof in order to enable him to defend himself. The applicant argues that the defendant gave information merely in a general and stereotypical manner without giving precise details the factual and legal elements which form the legal justification for its decision or the considerations which led it to adopt that decision.
—

Annul the decision of the European Union Agency for Fundamental Rights of 23 May 2011 to award the first framework contract under the tender procedure F/SE/10/03 — Lot 12 Cyprus to First Elements and the second framework contract to Symfiliosi;
1.

First plea in law, alleging infringement of rights guaranteed by the Charter of Fundamental Rights of the European Union The applicant's rights guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’) have been infringed. Article 16 of the Charter guarantees the freedom to conduct a business in the European Union and Article 17 guarantees the right to use and, in particular, to dispose of lawfully acquired possessions in the European Union. Articles 20 and 21 of the Charter guarantee the applicant the right to equal treatment and the right not to be discriminated against. The applicant is excluded from participation in trade in the European Union by the contested decision. The economic survival of the applicant is thereby threatened. The applicant is dependent on deliveries from the economic territory of the European Union. There is no public interest in the restriction of the applicant’s freedom to conduct a business, its property rights, its right to equal treatment and its right not to be discriminated against. In particular, there is no evidence to justify the defendant’s decision and the related interference with the applicant’s fundamental rights. The applicant is, in particular, not engaged in proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems.