ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 272/33

Action brought on 13 August 2008 — Ellinikos Niognomon v Commission

(Case T-312/08)

(2008/C 272/60)

Language of the case: English

Parties

Applicant: Ellinikos Niognomon AE (Piraeus, Greece) (represented by: S. Pappas)

Defendant: Commission of the European Communities

Form of order sought

— Declare the contested decision null and void;

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

Pleas in law and main arguments

By way of its application pursuant to Article 230 EC, the applicant seeks the annulment of the Commission's decision of 24 July 2008, by which it decided not to extend the applicant's limited recognition which it was granted under Directive 94/57/EC (1) by Commission Decision 2001/890/EC (2) and which was further extended by Commission Decision 2005/623/EC (3) of 3 August 2005.

The applicant, first, claims that the contested decision infringes an essential procedural requirement by not having followed the comitology procedure provided for in Articles 4 and 9 of Directive 94/57/EC.

Second, the applicant submits that the refusal to grant extension of the limited recognition is based on assessments carried out exclusively by the Commission and not jointly with the respective Member States according to Articles 4, 9 and 11 of Directive 94/57/EC.

Third, the applicant argues that the contested decision does not respect the applicant's rights of defence and is contrary to its legal expectations.

Fourth, the applicant contends that the contested decision infringes the Directive by misinterpreting it in so far as the applicable criteria are concerned (safety and prevention performance records), by omitting the gradual steps that the Commission should have undertaken before reaching a negative decision and by not having taken into account the inspections and reports produced by the Member States concerned, thus adopting unlawful reasoning.

Finally, the applicant claims that the contested decision infringes the principles of proportionality as well as the principle of good administration.

(1) Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations (OJ 1994 L 319, p. 20).

(2) Commission Decision of 13 December 2001 on the recognition of the ‘Hellenic Register of Shipping’ in accordance with Article 4(3) of Council Directive 94/57/EC (notified under document number C(2001) 4218) (OJ 2001 L 329, p. 72).

(3) Commission Decision of 3 August 2005 on the extension of the limited recognition of the Hellenic Register of Shipping (notified under document number C(2005) 2940) (OJ 2005 L 219, p. 43).
EN Official Journal of the European Union C 272/47

Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

(Case T-364/08)

(2008/C 272/92)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)

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 16 June 2008 in case R 1591/2007-2;

— Order the defendant to pay the costs; and

— Take any further action as the Court may deem appropriate.

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 figurative mark ‘nollie’ for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 — application No 4 601 621

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

Mark or sign cited: International trade mark registration No 839 740 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.
EN Official Journal of the European Union C 301/46

Appeal brought on 10 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-108/07 Nijs v Court of Auditors

(Case T-375/08 P)

(2008/C 301/78)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

— Declare the appeal admissible;

— Declare the appeal well-founded;

— Consequently, annul the order of 26 June 2008 in Case F-108/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those raised in Case T-371/08 P.
EN Official Journal of the European Union C 301/60

Action brought on 10 October 2008 — Intel v Commission

(Case T-457/08)

(2008/C 301/99)

Language of the case: English

Parties

Applicant: Intel Corp. (Wilmington, United States) (represented by: N. Green QC, K. Bacon, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decisions;

— Extend the deadline for submission of Intel's reply to the supplementary statement of objections (‘SSO’) to a period of 30 days from the date on which Intel is given access to the relevant documents of the complainant;

— Order the Commission to pay Intel's costs.

Pleas in law and main arguments

By means of this application the applicant seeks annulment, pursuant to Article 230 EC, of the Hearing Officer's decision of 15 September 2008 taken under Article 10 of Commission Decision 2001/462/EC (1) in Case COMP/C-3/37.990 — Intel relating to a proceeding under Article 82 EC, together with a decision by the Commissioner on or about 6 October 2008. The contested decisions concern the refusal on the part of the Commission to procure, particularly from the complainant in the case, certain documentary evidence that the applicant claims to be directly relevant to the allegations made by the Commission in the SSO. The Hearing Officer has also rejected Intel's submission that it cannot respond properly to the SSO without being provided with those documents, and has refused to further extend the deadline for Intel to file its reply to the SSO.

The applicant puts forward two pleas in law in support of its claims.

First, the applicant submits that the decisions contain errors in law and it claims that the time-limit for its reply to the SSO cannot start to run unless the file is materially complete; otherwise the undertaking wouldn't be able to exercise effectively its rights of defence.

Secondly, the applicant argues that the contested decisions are manifestly illegal because they permit the Commission to continue with an investigation which is discriminatory and partial, and which prevents the applicant from exercising its rights of defence. The applicant claims that this constitutes the violation of the principle of sound administration which requires the Commission to adopt its decision on the basis of all available factual and legal information which might have a bearing on the result.

(1) Commission Decision of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings, OJ L 162, p. 21.
EN Official Journal of the European Union C 301/51

Action brought on 22 September 2008 — Enercon v OHIM — BP (ENERCON)

(Case T-400/08)

(2008/C 301/87)

Language in which the application was lodged: English

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by: R. Böhm, lawyer)

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

Other party to the proceedings before the Board of Appeal: BP plc (London, United Kingdom)

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 14 July 2008 in case R 957/2006-4, insofar as it dismisses the appeal lodged by the applicant against the decision of the Opposition Division of 26 May 2006 ruling on opposition number B 760 605; and

— Order the defendant 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 ‘ENERCON’ for goods in classes 1, 2 and 4

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 137 828 of the word mark ‘ENERGOL’ for goods in classes 1 and 4

Decision of the Opposition Division: Upheld the opposition except for the goods that were found dissimilar

Decision of the Board of Appeal: Rejected the appeal for the goods that were found dissimilar and dismissed the appeal for the remainder

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 conflicting trade marks.
EN Official Journal of the European Union C 313/41

Action brought on 29 September 2008 — SPA v Commission

(Case T-417/08)

(2008/C 313/74)

Language of the case: English

Parties

Applicant: Sociedade Portuguesa de Autores CRL (SPA) (Lisbon, Portugal) (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/C2/38.698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) relating to a proceeding under Article 81 EC and Article 53 EEA. Precisely, the applicant contests the Commission findings in Article 3 of the contested decision stating that territorial delineations of the reciprocal representation mandates granted by one authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The pleas in law and main arguments raised by the applicant are identical to those raised by the applicant in Case T-415/08 IMRO v Commission.
EN Official Journal of the European Union C 301/55

Action brought on 25 September 2008 — Trubion Pharmaceuticals v OHIM — Merck (TRUBION)

(Case T-412/08)

(2008/C 301/92)

Language in which the application was lodged: English

Parties

Applicant: Trubion Pharmaceuticals Inc. (Seattle, United States) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, 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 3 July 2008 in case R 1605/2007-2; and

— Order the defendant 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 ‘TRUBION’ for goods and services in classes 5 and 42

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 72 884 of the word mark ‘BION’ registered for various goods; Community trade mark registration No 3 282 936 of the figurative mark ‘TriBion Harmonis’ registered for various goods

Decision of the Opposition Division: Upheld the opposition for the goods in class 5 and rejected it for the remaining services in class 42

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 (i) failed to asses the similarity of the trade marks by taking into account the overall impression of the earlier trade mark, and (ii) failed to take into account the interdependence of the relevant factors, in particular the low similarity of the goods when assessing the likelihood of confusion.
EN Official Journal of the European Union C 313/52

Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (WORLD CUP 2006 GERMANY)

(Case T-448/08)

(2008/C 313/92)

Language in which the application was lodged: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC, A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ferrero OHG mbH (Stadtallendorf, Germany)

Form of order sought

— Annul, in whole or in part, 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 1470/2005-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘WORLD CUP 2006 GERMANY’ for goods and services in classes 1, 3, 4, 6, 7, 8, 9, 11, 12, 14, 16, 18, 20, 25, 28, 29, 30, 32, 35, 36, 37, 38, 41 and 42 — Community trade mark registration No 2 047 843

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

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) Infringement of Article 73 and 74(1) of Council Regulation No 40/94 in so far as the Board of Appeal has based, largely, its decision on Article 7(1)(c) of Council Regulation No 40/94, a provision which was neither invoked by the other party to the proceedings before the Board of Appeal, nor relied upon by the Cancellation Division; (ii) Alternatively, infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal failed to consider the registered Community trade mark subject of the application for a declaration of invalidity as a whole, through the eyes of the average consumer and to apply the relevant law relating to the assessment of descriptiveness of the goods and/or services applied for; and (iii) Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of the necessary distinctive character.
EN Official Journal of the European Union C 313/50

Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (GERMANY 2006)

(Case T-445/08)

(2008/C 313/89)

Language in which the application was lodged: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC, A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ferrero OHG mbH (Stadtallendorf, Germany)

Form of order sought

— Annul, in whole or in part, 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 1467/2005-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘GERMANY 2006’ for goods and services in classes 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 — Community trade mark registration No 2 153 005

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

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) Infringement of Article 73 and 74(1) of Council Regulation No 40/94 in so far as the Board of Appeal has based, largely, its decision on Article 7(1)(c) of Council Regulation No 40/94, a provision which was neither invoked by the other party to the proceedings before the Board of Appeal, nor relied upon by the Cancellation Division; (ii) Alternatively, infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal failed to consider the registered Community trade mark subject of the application for a declaration of invalidity as a whole, through the eyes of the average consumer and to apply the relevant law relating to the assessment of descriptiveness of the goods and/or services applied for; and (iii) Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of the necessary distinctive character; and (iv) Infringement of Articles 7(3) and 51(2) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity had not acquired a distinctive character for services in class 41 and for all goods which are subject for merchandising.
1.

The Czech Republic, by this action brought pursuant to Article 230 of the Treaty establishing the European Community, seeks annulment of the decision of the Commission of the European Communities of 7 August 2008 on offsetting the Commission's claims against its debts, BUG/C3 D(2008) 10.5-3956. The Commission on issuing the contested decision acted pursuant to Article 73(1) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (1), as amended. By the contested decision, the Commission offset its claim against the Czech Republic, for repayment of funds from the PHARE T9106, CS9203 and CZ9302 revolving funds, amounting to EUR 9 354 130,93. The Commission's claim was offset against the Czech Republic's claim to two interim payments on two operational programmes financed from the structural fund amounting to EUR 10 814 475,41. The Czech Republic thus requests that the offset payments be made good.
EN Official Journal of the European Union C 327/40

Action brought on 23 October 2008 — Commission v Eurgit and Cirese

(Case T-470/08)

(2008/C 327/70)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: M. Moretto, lawyer, A. M. Rouchaud-Joët and N. Bambara, agents)

Defendants:Associazione dei Giuristi Italiani per le Comunità Europee — Eurgit (Rome, Italy) and Vania Cirese (Rome, Italy)

Form of order sought

— Order EURGIT and Mrs Vania Cirese, both jointly and severally, to reimburse the principal sum due of EUR 7 142, together with default interest at the statutory interest rate applicable in Belgium with effect from 11 November 2002 until full payment of the sums due;

— order EURGIT and Mrs Vania Cirese, both jointly and severally, to pay the costs.

Pleas in law and main arguments

The present action is brought by the European Commission pursuant to Article 238 EC for an order that EURGIT and Mrs Cirese, jointly and severally, reimburse the sum of EUR 7 412, together with default interest, being the advance paid by the applicant to EURGIT to carry out project No 97/GR/098, financed in the framework of the GROTIUS programme of incentives and exchanges for legal practitioners.

The Commission submits that, under paragraph 7 of the ‘statement by the beneficiary of a financial contribution’, the beneficiary undertakes, where items of expenditure incurred cannot justify the use of the financial contribution received, to reimburse, upon its request, sums already paid which are not justified.

Since EURGIT has failed, within the prescribed period, to justify the use of the sum advanced by the Commission, there can be no doubt that the defendant and any person acting in its name or on its behalf is liable for the reimbursement of the advance paid.
EN Official Journal of the European Union C 19/32

Action brought on 17 November 2008 — Kureha v OHIM — Sanofi-Aventis (KREMEZIN)

(Case T-487/08)

(2009/C 19/60)

Language in which the application was lodged: English

Parties

Applicant: Kureha Corp. (Tokyo, Japan) (represented by: W. von der Osten-Sacken and O. Sude, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sanofi-Aventis SA (Gentilly, France)

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 15 September 2008 in case R 1631/2007-4; and

— Order the other party to the proceedings before the Board of Appeal 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 ‘KREMEZIN’ for goods in class 5 — application No 2 906 501

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: International trade mark registration No 529 937 of the word mark ‘KRENOSIN’ 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 Rule 19 and of Rule 20(1) of Commission Regulation No 2868/95 (1), as well as misuse of power, as the Board of Appeal wrongly considered that the other party to the proceedings before it has sufficiently proven the existence and validity of the earlier trade mark; Infringement of Article 8(1)(b) in connection with Article 43(2) and (3) 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.

(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).