ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 51/44

Action brought on 24 December 2009 — Meredith v OHIM (BETTER HOMES AND GARDENS)

(Case T-524/09)

2010/C 51/81

Language of the case: English

Parties

Applicant: Meredith Corporation (Des Moines, United States) (represented by: R.N. Furneaux and E.A. Hardcastle, Solicitors)

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

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 23 September 2009 in case R 517/2009-2, insofar as it rejected the application for the Community trade mark concerned for services in class 36, with the consequence that the application will be allowed for such services;

— Uphold the claims of the applicant; and

— Order the defendant to pay the costs of these proceedings in the event it contests them and dismiss its claim.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BETTER HOMES AND GARDENS’ for goods and services in classes 16, 35 and 36

Decision of the examiner: Partially refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b) and 7(2) of Council Regulation No 207/2009, as the Board of Appeal erred in not applying the correct test for assessing whether a trade mark is devoid of any distinctive character to distinguish the goods and services for which registration is sought.
EN Official Journal of the European Union C 221/46

Appeal brought on 21 May 2010 by Y against the judgment of the Civil Service Tribunal delivered on 7 October 2009 in Case F-29/08, Y v Commission

(Case T-493/09 P)

()

2010/C 221/77

Language of the case: French

Parties

Appellant: Y (Brussels, Belgium) (represented by J. Van Rossum, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— annul the judgment of the Civil Service Tribunal of 7 October 2009 (Case F-29/08 Y v Commission) dismissing the applicant’s action;

— annul the decision of 24 May 2007 to dismiss the applicant;

— order the Commission to pay him the remuneration which he would have continued to receive if his contract had not been prematurely terminated, together with all the allowances to which he is entitled;

— order the Commission to pay him compensation of EUR 500 000 in respect of the non-material damage which he has suffered;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present appeal, the applicant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 7 October 2009 in Case F-29/08 Y v Commission, dismissing the action by which the applicant had sought, on the one hand, the annulment of the decision of the Commission to dismiss the applicant and, on the other, damages.

In support of his appeal, the applicant submits that the CST erred in law:

— by considering that the Commission did not have the obligation of consulting the Reports Committee when the decision of the Commission of 7 April 2004 laying down General Implementing Provisions on the procedures governing the engagement and the use of contract staff requires such consultation;

— by considering that the applicant was validly dismissed when he had not been able to submit his observations on the opinion of the Reports Committee, which was not sent to him;

— by ruling that the failure to send the opinion of the Reports Committee to the applicant did not infringe his rights of the defence;

— by considering that the decision to dismiss was not based on the opinion of the Reports Committee, when that very report was expressly referred to in the grounds of the decision to dismiss;

— by taking the view that the decision to dismiss was correctly founded when it was based on complaints and facts which preceded the applicant’s entry into service as a contractual agent; and
EN Official Journal of the European Union C 80/26

Action brought on 22 December 2009 — Cañas v Commission

(Case T-508/09)

2010/C 80/46

Language of the case: French

Parties

Applicant: Guillermo Cañas (Buenos Aires, Argentina) (represented by: F. Laboulfie, lawyer)

Defendant: European Commission

Form of order sought

— Annul the decision of the European Commission of 12 October 2009 in Case COMP/39471, Guillermo Cañas v WAA, ATP and ICAS

Pleas in law and main arguments

The applicant, a professional Argentinian tennis player, seeks the annulment of the decision of the Commission of 12 October 2009 by which the Commission rejected, on the ground of insufficient Community interest, the applicant’s complaint against the World Anti-doping Agency (WAA), ATP Tour Inc. (ATP) and the International Council of Arbitration for Sport (ICAS) concerning alleged breaches of Article 81 EC and/or Article 82 EC in connection with agreements or concerted practices and an abuse of dominant position by those sporting bodies.

In support of his action, the applicant submits that the rules of the World Anti-doping Code drafted, applied and validated by the WAA, ATP and ICAS are discriminatory because they permit different punishments, according to the category of substance found in bodily fluids, to be handed down to two athletes, who tested positive due to negligence, who committed the same infringement. To be exact, the applicant submits that those anti-doping rules penalise doping due to negligence with a substance categorised as prohibited with a minimum suspension of one year, while the minimum penalty for doping due to negligence with a substance categorised as specific (now specified) is a warning.

In the view of the applicant, the anti-doping rules in question are excessive, since the penalty system which they lay down does not permit account to be taken of the effect, in this case adverse, of a substance accidentally ingested. The anti-doping rules and their application are disproportionate in relation to the (relative) seriousness of the infringement alleged.

The WAA, ATP and ICAS, three undertakings within the Community meaning of that term, concluded agreements or adopted concerted practices unlawfully restricting competition between professional tennis players and affecting trade between the Member States. The anti-doping rules in question apply to all athletes in all sporting disciplines, at least, Olympic ones, and not solely to the applicant, for which reason their prohibition is of considerable Community interest.

In addition, the WAA, ATP and ICAS, jointly and/or severally, abused their dominant position, first by actual and potential discrimination between competing professional sportsmen and women and next because the anti-doping rules allow ATP to refuse to enter into a contract with a tennis player who tested positive due to negligence for a prohibited substance for a minimum period of one year.
EN Official Journal of the European Union C 51/45

Action brought on 5 January 2010 — De Lucia v OHIM — Galbani (De Lucia La natura pratica del gusto)

(Case T-2/10)

2010/C 51/83

Language in which the application was lodged: Italian

Parties

Applicant: Domenico De Lucia SpA (San Felice a Cancello, Italy) (represented by: S. Cutolo, 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: Egidio Galbani SpA (Melzo, Italy)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of 15 October 2009 in Case R 37/2009-1.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: De Lucia

Community trade mark concerned: Figurative mark composed of the word element ‘De Luca/La natura pratica del gusto’ (application for registration No 4 962 346) for goods in Classes 29, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Egidio Galbani SpA.

Mark or sign cited in opposition: Community word mark ‘LUCIA’ (No 620 716) for goods in Classes 29 and 30; Community figurative mark composed of the word element ‘Galbani-Santa Lucia’ (No 2 302 677) for goods in Class 29; national (Italian registration No 67 470) and international (No 256 299) figurative mark ‘LUCIA’ for goods in Class 29; national (Italian registration No 597 377), international (No 601 651) and Community (No 70 185) figurative mark ‘Santa Lucia’ for goods in Classes 29 and 30; national (Italian registration No 131 028) and international (No 256 299) word mark ‘Santa Lucia’ for goods in Class 29, and Community word mark ‘Santa Lucia’ (No 70 128) for goods in Classes 29 and 30.

Decision of the Opposition Division: Opposition upheld in part insofar as concerns certain goods in Class 31.

Decision of the Board of Appeal: Appeal granted insofar as concerns ‘tobacco’ (Class 31) and authorisation granted for the registration of this product.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 and no and/or inadequate reasons given in relation to the request that Article 12(a) of the regulation be applied.
EN Official Journal of the European Union C 80/33

Action brought on 7 January 2010 — Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygia AE’ v OHIM

(Case T-7/10)

2010/C 80/56

Language of the case: Greek

Parties

Applicant: Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygia AE’ (Athens, Greece) (represented by: K. Alexiou and S. Foteas, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— uphold the application;

— annul the decision of the Second Board of Appeal of OHIM in Case No R190/2009-2;

— register the word sign ‘υγεία’ (hygeia) as a Community trademark indicating the link between the applicant company and the services it provides;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word sign ‘υγεία’ for services in Class 44, medical services — application for registration No 712900

Decision of the examiner: rejection of the application for registration

Decision of the Board of Appeal: confirmation of the decision of the examiner and rejection of the application for registration

Pleas in law:

The application seeks annulment of the decision of the Second Board of Appeal of OHIM in Case No R 190/2009-2.

On the basis of the first plea, the applicant maintains that the contested decision wrongly ascribed purely descriptive character to the sign, despite the fact that it has a distinctive function in abstracto.

On the basis of the second plea, the applicant maintains that the contested decision wrongly rejected the distinctive function of the sign in consequence of the use reserved to it. According to the applicant, even if the descriptive character in abstracto of the word sign is accepted, the acquisition of distinctive function can be founded on use and constitutes a ground for setting aside the refusal to register.
EN Official Journal of the European Union C 100/66

Action brought on 18 February 2010 — Alfa Acciai SpA v European Commission

(Case T-85/10)

2010/C 100/97

Language of the case: Italian

Parties

Applicant(s): Alfa Acciai SpA (Brescia, Italy) (represented by: D. Fosselard, avvocato, S. Amoruso, avvocato, L. Vitolo, avvocato)

Defendant(s): European Commission

Form of order sought

— Annulment of Commission Decision C(2009) 7492 fin. of 30 September 2009 (COMP/37.956 — reinforcing bars, re-adoption) (‘the Decision’), as supplemented and amended by the Decision of the European Commission C(2009) 9912 fin. of 8 December 2009, in so far as it declares an infringement of Article 65 CS by Alfa Acciai S.p.A and imposes a fine of EUR 7 175 million;

In the alternative:

— Annulment of Article 2 of the Decision which imposes a fine on the applicant;

In the further alternative:

— Reduction of the fine;

— An order that the defendant pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-70/10 Feralpi Holding Spa v Commission and Case T-83/10 Riva Fire Spa v Commission.

In particular, the applicant argues

Lack of authority of the Commission to impose penalties for breach of Article 65 CS once that Treaty ceased to be in force and in any event to use Articles 7(1) and 23(2) of Regulation EC No 1/2003 (1) as a legal basis.

The infringement of the rights of the defence of the applicant in the preceding administrative procedure in so far as the Commission did not send a further statement of objections but confined itself to giving notice by letter of its intention to re-adopt the Decision. The Member States were not heard and did not participate in a final hearing and it was made impossible for the applicant to state its own position in view of the re-adoption of the Decision.

Infringement of Article 65(1) CS in so far as the facts described in the Decision do not constitute a single continuing agreement.

Infringement of the Guidelines for setting fines pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003, and infringement of the principles of equality and proportionality in the assessment of the conduct of the applicant and in setting the amount of the fine.

(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 100/67

Action brought on 23 February 2010 — Chestnut Medical Technologies v OHIM (PIPELINE)

(Case T-87/10)

2010/C 100/98

Language of the case: English

Parties

Applicant: Chestnut Medical Technologies, Inc. (Menlo Park, United States) (represented by: R. Kunz-Hallstein, H. Kunz-Hallstein, lawyers)

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

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 10 December 2009 in case R 968/2009-2; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PIPELINE’ for goods in class 10

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its assessment that the Community trade mark concerned has a descriptive character; infringement of Articles 75 of Council Regulation No 207/2009 as the Board of Appeal, by ignoring arguments brought by the applicant, infringed upon the obligation to state the reasons on which the decision has been based.
EN Official Journal of the European Union C 113/48

Appeal brought on 9 February 2010 by Giorgio Lebedef against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-54/09, Lebedef v Commission

(Case T-52/10 P)

2010/C 113/78

Language of the case: French

Parties

Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by F. Frabetti, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Annul the order of the CST of 30 November 2009 in Case F-54/09 between Giorgio Lebedef, resident at 4 Neie Wee, L-1670 Senningerberg, Luxembourg, official at the European Commission, assisted and represented by Frédéric Frabetti, 5 rue Jean Bertels, L-1230 Luxembourg, avocat à la Cour, at whose offices service is to be made, and the Commission of the European Communities, represented by J. Currall and G. Berscheid, acting as Agents, with an address for service in Luxembourg, defendant, seeking annulment of the decisions of 15.2.2008, 1.4.2008, 10.4.2008, 20.5.2008 and 14.7.2008 concerning the deduction of 39 days from the applicant’s annual leave entitlement for 2008;

— Allow the applicant’s claims at first instance;

— In the alternative, refer the matter back to the Civil Service Tribunal;

— Rule on costs and order the Commission to pay the costs.

Pleas in law and main arguments

By the present appeal, the applicant seeks the annulment of the order of the Civil Service Tribunal (CST) of 30 November 2009 in Case F-54/09 Lebedef v Commission, rejecting as manifestly devoid of any legal basis the action by which the applicant had sought annulment of a series of decisions concerning the deduction of 39 days from his annual leave for 2008.

In support of his appeal, the applicant raises nine pleas in law, alleging:

— failure to have regard to the sixth paragraph of Article 1 of Annex II to the Staff Regulations and to Article 1(2) of the Framework Agreement governing relations between the Commission and the trade unions and professional organisations;

— incorrect interpretation and application of the concept of freedom of association;

— facts which did not exist in 2008;

— failure to have regard to the decision of the Commission of 28 April 2004 laying down provisions applicable to absence due to illness or accident;

— incorrect interpretation and application of the concepts ‘participation in staff representation’, ‘secondment for the purposes of trade union matters’ and ‘absence on trade union matters’;

— distortion and misrepresentation of the facts and of the applicant’s assertions and material inaccuracy of the findings of the CST with regard to the registration of ‘irregular absences’ in SysPer2;

— misinterpretation of the applicant’s declarations and an error in law committed by the CST by interpreting the concept of ‘absence’ as it is defined in Articles 57, 59 and 60 of the Staff Regulations;

— an error in law committed by the CST in applying Article 60 of the Staff Regulations; and
EN Official Journal of the European Union C 148/34

Action brought on 22 March 2010 — Saupiquet v Commission

(Case T-131/10)

2010/C 148/60

Language of the case: French

Parties

Applicant: Saupiquet (Courbevoie Cedex, France) (represented by: R. Ledru, lawyer)

Defendant: European Commission

Form of order sought

— annul, in full, Commission Decision No REM 07/08 of 16 December 2009;

— order the European Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2009) 10005 final of 16 December 2009, informing the French authorities that the repayment to the applicant of import duties on cans of tuna originating in Thailand is not justified (file REM 07/08).

In support of its action, the applicant submits that the Commission failed to fulfil its obligation to guarantee that importers, established in France or in other Member States in which customs offices are legally closed on Sundays, who lodged their customs declarations on Monday 2 July 2007 would have equal and non-discriminatory access to quota No 09.2005 for the period 2007/2008,

— by not taking, in the circumstances of the present case in which that quota was opened on Sunday, 1 July 2007, regulatory measures that would have made it possible to treat those importers in a manner that is equal and free from discrimination;
EN Official Journal of the European Union C 134/45

Action brought on 18 March 2010 — Hartmann v OHIM (Complete)

(Case T-123/10)

2010/C 134/73

Language in which the application was lodged: German

Parties

Applicant: Paul Hartmann AG (Heidenheim, Germany) (represented by N. Aicher, lawyer)

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 20 January 2010 in Case R 601/2009-4;

— order the defendant to pay the costs, including the costs of the proceedings before OHIM.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Complete’ for goods in classes 5 and 10 (Application No 7 432 024)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 207/2009, (1) in that the sign applied for in respect of the goods in question is not directly descriptive and, further, infringement of Article 7(1)(b) of Regulation No 207/2009 in that this sign does not lack the requisite distinctive character.

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

order the European Commission, and one of its Members and certain officers thereof, jointly and severally, to pay the amount of EUR 200 000 in respect of financial damage, in addition to statutory interest of 10 % per annum as from 1995 plus interest to be determined by the Court;
EN Official Journal of the European Union C 148/39

Action brought on 26 March 2010 — Milux v OHIM (REFLUXCONTROL)

(Case T-139/10)

2010/C 148/65

Language of the case: English

Parties

Applicant(s): Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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 13 January 2010 in case R 1134/2009-4; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark “REFLUXCONTROL” for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.