ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 30/43

Action brought on 13 November 2010 — Cosepuri v EFSA

(Case T-532/10)

()

2011/C 30/79

Language of the case: Italian

Parties

Applicant: Cosepuri Soc. coop. p.a. (Bologna, Italy) (represented by: F. Fiorenza, lawyer)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

— Annul the refusal dated 15 September 2010 denying Cosepuri access to the documents;

— Order EFSA to produce the classified documents;

— Order EFSA to pay the costs.

Pleas in law and main arguments

The applicant in the present proceedings, also the applicant in Case T-339/10 Cosepuri v EFSA, (1) challenges the decision of the European Food Safety Authority (EFSA) of 15 September 2010 relating to tendering procedure CFT/EFSA/FIN/2010/01 (contract notice 2010/S 51-074689) for the award of a shuttle service contract in Italy and Europe, in which the contract was awarded to another company.

By the contested decision, EFSA refused access to certain documents in the tendering procedure and in particular to documents concerning the requirements for admission and the selection of the most economically advantageous tender.

In support of its claims, the applicant alleges infringement of the relevant provisions of Council Regulation (EC) No 1605/2002 of 25 June 2002 (2) and of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001, (3) as well as breach of the duty to state reasons, the principle of transparency and the right of access to documents. Lastly, the applicant alleges misuse of powers.

The applicant complains, in particular, that the defendant failed to state the actual damage that the successful tenderer would suffer if access were granted to the documents requested, and that adequate reasons were not given for the partial refusal of the request, since, in the context of the tendering procedure, the information in question was comparative, included in the documents made available by the tenderers for that procedure, and accordingly outside the scope of confidential business information. In addition, the applicant requests that the present proceedings be joined with Case T-339/10 currently pending before the General Court.

(1) OJ 2010 C 288, p. 47.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(3) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 30/47

Action brought on 26 November 2010 — Adamowski v OHIM — Fagumit (Fagumit)

(Case T-538/10)

()

2011/C 30/85

Language in which the application was lodged: German

Parties

Applicant: Ursula Adamowski (Hamburg, Germany) (represented by: D. von Schultz, 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: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o. (Wolbrom, Poland)

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 September 2010 in Case R 1003/2009-1;

— dismiss the application for a declaration of invalidity of Community trade mark No 3 093 226;

— order OHIM to pay the costs incurred in removing the mark from the register, in the proceedings before the Board of Appeal, and in the present proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Fagumit’ for goods in Classes 12 and 17.

Proprietor of the Community trade mark: Ursula Adamowski

Applicant for the declaration of invalidity: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o.

Trade mark right of applicant for the declaration: National figurative mark containing the word element ‘FAGUMIT’ for goods in Class 17.

Decision of the Cancellation Division: Dismissal of the application for annulment.

Decision of the Board of Appeal: Appeal upheld and the mark was declared invalid.

Pleas in law: Infringement of Article 53(1)(c) of Regulation (EC) No 207/2009, (1) in conjunction with Article 8(4) thereof, since the other party to the proceedings before the Board of Appeal failed to provide legally valid evidence that the company name ‘FAGUMIT’ is actually used; infringement of Article 53(1)(b) of Regulation (EC) No 207/2009, in conjunction with Article 8(3) thereof, since the other party to the proceedings before the Board of Appeal effectively agreed to the registration of the trade mark rights associated with the name ‘FAGUMIT’, and infringement of Article 52(1)(b) of Regulation (EC) No 207/2009, since the applicant cannot be accused of acting in bad faith at the time when she filed her application for the contested Community trade mark.

(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 55/32

Action brought on 27 December 2010 — Yilmaz v OHIM — Tequila Cuervo (TEQUILA MATADOR HECHO EN MEXICO)

(Case T-584/10)

2011/C 55/57

Language in which the application was lodged: English

Parties

Applicant: Mustafa Yilmaz (Stuttgart, Germany) (represented by: F. Kuschmirek, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tequila Cuervo, SA de CV (Tlaquepaque, Mexico)

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 13 October 2010 in case R 1162/2009-2; and

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

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 figurative mark ‘TEQUILA MATADOR HECHO EN MEXICO’, for goods in class es 32 and 33 — Community trade mark application No 3975117

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

Mark or sign cited in opposition: German trade mark registration No 30205053.1 of the word mark ‘MATADOR’ for goods in class 32; International trade mark registration No 792051 of the word mark ‘MATADOR’ for goods in class 32

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

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was no likelihood of confusion, as the trade marks in question are confusingly similar with regard to the goods for which the applied for trade mark seeks protection.
EN Official Journal of the European Union C 55/27

Action brought on 15 December 2010 — Ertmer v OHIM — Caterpillar (erkat)

(Case T-566/10)

2011/C 55/48

Language in which the application was lodged: German

Parties

Applicant: Jutta Ertmer (Tatsungen, Germany) (represented by: A. von Mühlendahl and C. Eckhartt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Caterpilla, Inc. (Illinois, USA)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 September 2010 in Case R 270/2010-1;

— dismiss the appeal lodged by Caterpillar Inc. on 17 February 2010 against the decision of the cancellation Division of OHIM of 8 January 2010 in Cancellation proceedings No 2504 C;

— order the defendant and Caterpillar Inc., if it decides to participate in the proceedings, to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark ‘erkat’ for goods in Classes 7 and 42.

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity: Caterpillar Inc.

Grounds for the application for a declaration of invalidity: pursuant to Article 53(1)(a) the application was based on the national and Community word mark ‘CAT’, the national figurative marks and the Community figurative mark containing the word ‘CAT’, for goods and services in Classes 7 and 42.

Decision of the Cancellation Division: the application for a declaration of invalidity was dismissed.

Decision of the Board of Appeal: the appeal was upheld and the registered mark was declared invalid.

Pleas in law: Infringement of Article 8 in conjunction with Article 75 of Regulation (EC) No 207/2009, (1) since the contested decision does not show on which earlier mark or marks the Board of Appeal based its decision to grant the application of the other party and a key part of the grounds was copied from another decision; infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since there was no likelihood of confusion between the opposing marks; and infringement of Article 8(5) in conjunction with Article 75 of Regulation (EC) No 207/2009, since the earlier figurative marks do not have a reputation and there would be no detriment to, or unfair advantage taken of, the distinctive character or repute of those marks.

(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 72/19

Action brought on 16 December 2010 — Vivendi v Commission

(Case T-568/10)

2011/C 72/32

Language of the case: French

Parties

Applicant: Vivendi (Paris, France) (represented by: O. Fréget, J.-Y. Ollier and M. Struys, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— declare the present action admissible;

— annul the Commission’s decision of 1 October 2010 by which it rejected the complaint lodged by Vivendi on 2 March 2009 (registered under number 2009/4267), for infringement by the French Republic of Directive 2002/77/EC of 16 December 2002 on competition in the markets for electronic communications networks and services and, consequently, Article 106(1) TFEU, by granting a regulatory advantage in refusing ARCEP the right to use its powers to force the incumbent operator to reimburse the operators seeking access to the local loop the sums charged in excess of the costs incurred in providing the service which is subject to cost-orientation;

— order the Commission to pay the costs incurred by the applicant before the General Court.

Pleas in law and main arguments

In support of its action, the applicant raises four pleas as regards the substance:

1. The first plea is based on an error of law concerning the definition of a ‘special right’ within the meaning of Directive 2002/77/EC. (1)

2. The second plea is based on the Commission's failure to comply with its duty to ensure application under Article 106(3) TFEU.

3. The third plea is based on an error of law, in so far as the Commission wrongly considered that the obligation to orientate certain tariffs towards costs is not laid down in a European Union directive, but is the responsibility of the national regulator.

4. The fourth plea is based on an error of law in that the Commission considered that the rights of the private operators were not infringed since they could resort to the national commercial law courts to obtain reimbursements of the excessively high sums levied by France Télécom, given that the complexity of such a case makes it impossible to fully exercise the right to reimbursement before those courts.

(1) Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).
EN Official Journal of the European Union C 80/20

Action brought on 29 December 2010 — El Corte Inglés v OHIM — Ruan (B)

(Case T-593/10)

2011/C 80/38

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: J. L. Rivas Zurdo and E. Seijo Veiguela, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Jian Min Ruan (Mem Martins, Portugal)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 October 2010, in Case R 576/2010-2, and declare that, in accordance with Article 8(1)(b) of the CTMR, the opponent’s appeal before OHIM ought to have been upheld and the Opposition Division’s decision to grant in full the complex Community trade mark ‘B’ (No 6.379.721) annulled;

— order the party or parties which oppose this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Jian Min Ruan.

Community trade mark concerned: Red and white figurative mark containing the letter ‘B’ for goods in Class 25.

Proprietor of the mark or sign cited in the opposition proceedings: El Corte Inglés, SA.

Mark or sign cited in opposition: Figurative mark containing the letter ‘B’ for goods in Class 25.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is a likelihood of confusion between the marks at issue.

(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 80/23

Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter)

(Case T-25/11)

2011/C 80/45

Language of the case: Spanish

Parties

Applicant: Germans Boada (Rubí, Spain) (represented by J. Carbonell Callicó, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010, in Case R 771/2010-1, in accordance with Article 65(3) CTMR and on grounds of infringement of the principle of equal treatment and infringement of Article 7(1)(b) and (3) CTMR, and register three-dimensional trade mark 7.317.911;

— in the alternative and solely in the event that the first claim does not succeed, annul the decision of the First Board of Appeal of OHIM of 28 October 2010, in Case R 771/2010-1, on the ground of infringement of Articles 75 and 76 CTMR;

— order OHIM to pay the costs, in accordance with Article 87(2) CTMR.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a ceramics cutter, for goods in Class 8

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009, (1) since the mark applied for has distinctive character, and of Article 7(3) of Regulation (EC) No 207/2009, on the ground that it has been shown that the mark concerned has acquired distinctiveness through use. Infringement of the principle of equal treatment and of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, since OHIM should have taken into account only the facts and evidence submitted by the parties in due time. Infringement of Articles 75 and 76 of Regulation (EC) No 207/2009, on the ground that OHIM failed to take into account facts and evidence submitted by the applicant in due form and in due time.

(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 89/25

Action brought on 28 January 2011 — Run2Day Franchise v OHIM — Runners Point (Run2)

(Case T-64/11)

2011/C 89/49

Language in which the application was lodged: English

Parties

Applicant: Run2Day Franchise BV (Utrecht, Netherlands) (represented by: H.J. Koenraad, lawyer)

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

Other party to the proceedings before the Board of Appeal: Runners Point Warenhandels GmbH (Recklinghausen, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 November 2010 in case R 349/2010-1;

— Order the defendant, and if applicable the other party to the proceedings before the Board of Appeal, to bear the costs of the proceedings;

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 figurative mark ‘Run2’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 6517502

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

Mark or sign cited in opposition: Community trade mark registration No 3800448 of the word mark ‘RUN2DAY’, for goods and services in classes 25, 28 and 35; Community trade mark registration No 3832458 of the figurative mark in colours ‘RUN2DAY’, for goods and services in classes 25, 28 and 35; Benelux trade mark registration No 811897 of the figurative mark in colours ‘RUN2DAY’, for goods and services in class 25

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was no likelihood of confusion.
EN Official Journal of the European Union C 113/15

Action brought on 25 January 2011 — Kastenholz v OHIM — qwatchme (watch dials)

(Case T-68/11)

2011/C 113/30

Language in which the application was lodged: German

Parties

Applicant: Erich Kastenholz (Troisdorf, Germany) (represented by: L. Acker, lawyer)

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

Other party to the proceedings before the Board of Appeal: qwatchme A/S (Vejle East, Denmark)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 November 2010 in Case R 1086/2009-3;

— refer the case back to the Cancellation Division for consideration of copyright protection relied on by the applicant, which was not adequately analysed by that Division;

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 602636-0003, which shows a watch dial.

Proprietor of the Community design: qwatchme A/S.

Applicant for the declaration of invalidity of the Community trade mark: the applicant.

Grounds for the application for a declaration of invalidity: Breach of Article 25(1)(b), together with Article 4 and Article 25(1)(f) of Regulation (EC) No 6/2002, (1) for lack of novelty and infringement of Paul Heimbach’s copyright in an artistic work.

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

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

Pleas in law: Breach of Article 25(1) and Article 5 and Article 6 of Regulation (EC) No 6/2002, as the Board of Appeal did not make a clear distinction between the features of ‘novelty’ and ‘individual character’, as well as breach of Article 25(1)(f) of Regulation (EC) No 6/2002, as neither the Board of Appeal nor the Cancellation Division of OHIM had duly analysed whether the Community design constitutes a prohibited use of a work which is protected under German copyright legislation.

(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
EN Official Journal of the European Union C 103/27

Appeal brought on 11 February 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 23 November 2010 in Case F-65/09, Marcuccio v Commission

(Case T-85/11 P)

2011/C 103/46

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

The appellant claims that the General Court should:

— in any event, set aside in its entirety and without exception the judgment under appeal;

— declare that the document produced by the Commission on the day of the hearing has always been and remains totally inadmissible in hanc litem;

— allow in its entirety and without any exception whatsoever the relief sought 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 judgment of the Civil Service Tribunal of 23 November 2010. That judgment dismissed an action for annulment of the decision of 5 August 2008, adopted pursuant to the judgment delivered by the Court of First Instance on 10 June 2008 in Case T-18/04 Marcuccio v Commission (not published in the ECR), annulment of the decision to reject the complaint against that decision and an order that the Commission pay the appellant a certain sum by way of compensation for the damage purportedly suffered as a result of those decisions.

The appellant relies on four grounds of appeal.

1. First ground, alleging certain procedural errors and errors in judicando on the grounds, inter alia, of breach of the rights of the defence.

2. Second ground, alleging that the author of the decision annulment of which was sought at first instance lacked competence.

3. Third ground, alleging absolute failure to state reasons in connection with the annulment sought at first instance.
—

declare that, concerning the applicant, Mr Badia Brice GUEI, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,