ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 209/66

Action brought on 24 June 2008 — Wrigley v OHIM — Mejerigaarden (POLAR ICE)

(Case T-256/08)

(2008/C 209/116)

Language in which the application was lodged: English

Parties

Applicant: Wm. Wrigley Jr. Company (Chicago, United States) (represented by: M. Kinkeldey, S. Schäffler and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mejerigaarden Holding A/S (Thisted, Denmark)

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 April 2008 in case R 845/2006-2; 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 ‘POLAR ICE’ for goods in classes 3, 5 and 30

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 1 273 564 of the figurative mark ‘Polar is’ for goods in class 30; Danish trade mark registration No VR 1971 03528 of the word mark ‘POLAR IS’ for goods in class 30; Danish trade mark registration No VR 1994 07979 of the word mark ‘POLAR MAXI’ for goods in class 30

Decision of the Opposition Division: Rejection of the Community trade mark application in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 40/94 as the conflicting trade marks show relevant visual, phonetic and conceptual dissimilarities to avoid any likelihood of confusion.
EN Official Journal of the European Union C 223/45

Action brought on 4 June 2008 — Gosselin World Wide Moving v Commission

(Case T-208/08)

(2008/C 223/78)

Language of the case: Dutch

Parties

Applicant: Gosselin World Wide Moving (Deurne, Belgium) (represented by: F. Wijckmans, lawyer, and S. De Keer, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C(2008)926 final of 11 March 2008, notified to the applicant on 25 March 2008, relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services), in so far as it concerns the applicant;

— In the alternative, annul Article 1 of the Decision, in so far as it concerns the applicant, inasmuch as it finds a continuous infringement by the applicant from 31 January 1992 until 18 September 2002, and reduce the fine imposed on it in Article 2, in a manner corresponding to that adjusted period of the infringement;

— In the alternative, annul Article 2(e) of the Decision, in so far as it concerns the applicant, on the grounds set out in the second and/or third pleas, and reduce correspondingly the fine imposed on it in Article 2;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant's first plea alleges that the Decision infringes Article 81 EC. The first part of the plea submits that the Commission has not proved that the acts alleged against the applicant are to be classified as an appreciable restriction of competition for the purposes of Article 81 EC. The second part submits that the Commission has not correctly proved that that the agreement in which the applicant participated could appreciably affect trade between Member States.

In the alternative, the second plea submits that the Decision infringed Article 23 of Regulation No 1/2003 (1), Regulation No 17/62 (2), and the Guidelines on the method of setting fines (3). Those provisions were infringed when the Commission determined the gravity of the infringement, its duration, the value of turnover with regard to setting the basic amount of the fine, and rejected the existence of any mitigating circumstances for the applicant for the purposes of the fine.

In the alternative, the third plea alleges breach of the principle of equal treatment, in particular when the Commission determined the gravity of the infringement and the value of relevant turnover for the purposes 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 (Text with EEA relevance) (OJ 2003 L 1, p. 1).

(2) Council Regulation No 17 : First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition, 1962, p. 87).

(3) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (Text with EEA relevance) (OJ 2006 C 210, p. 2).
EN Official Journal of the European Union C 223/54

Action brought on 30 June 2008 — Rath v OHIM — Portela & Ca. (DIACOR)

(Case T-258/08)

(2008/C 223/95)

Language in which the application was lodged: English

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented by: U. Vogt, C. Kleiner and S. Ziegler, lawyers)

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

Other party to the proceedings before the Board of Appeal: Portela & Ca., SA (Mamede do Coronado, Portugal)

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 30 April 2008 in case R 1630/2006-2; and

— Order the defendant and, if the case may be, 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 ‘DIACOR’ for goods and services in classes 5, 16 and 41

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: Portuguese trade mark registration No 137 311 of the mark ‘DIACOL’ for goods in class 79, in accordance with the national classification of goods in force at the time of registration

Decision of the Opposition Division: Upholding of the opposition for all the contested goods in class 5

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: (i) Infringement of Article 22(6) of Commission Regulation No 2868/95 (1) as several documents submitted by the other party to the proceedings before the Board of Appeal were not in English and no translation had been provided to the applicant in order to assess the content of the evidence of use; (ii) Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the Board of Appeal erred in its opinion that the other party to the proceedings before it had submitted sufficient evidence for the proof of use of the earlier mark in Portugal for all the goods for which it has been registered; and (iii) Infringement of Article 8(1) of Council Regulation No 40/94 as the conflicting trade marks show no visual, phonetic or conceptual similarities, such as to trigger a likelihood of confusion.

(1) Regulation (EC) No 2868/1995 of the Commission of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 247/19

Action brought on 28 July 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission of the European Communities

(Case T-296/08)

(2008/C 247/38)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung eV (Berlin, Germany) (represented by: U. Claus, lawyer, acting as Agent)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 23 May 2008 definitively granting a payment under the ‘Integration indicators and generation change’ programme on the basis of the financing arrangement JLS/2004/INTI/077, insofar as applicant's application for a final payment of EUR 59 592,77, exceeding the authorised amount, was rejected;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant and the Commission signed a contract in May 2005 concerning the promotion of a project in the context of the INTI programme. By letter dated 23 May 2008, the defendant granted the applicant a lower final payment than that for which the latter had applied. The present action is directed against the rejection of its application for payment of the costs exceeding the authorised sum.

The applicant asserts in support of its action that the Commission's view that a change of project participants after the conclusion of the financing arrangement is only possible if an appropriate alteration agreement is concluded is unfounded. This is due to the fact that a provision to that effect is not included in the financing arrangement. Further, the Commission refused to recognise costs on various grounds, which are incompatible with the financing arrangement and with previous institutional practice.
EN Official Journal of the European Union C 223/45

Action brought on 6 June 2008 — Strack v Commission

(Case T-221/08)

(2008/C 223/79)

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the decisions, particularly the decision of 19 May 2008, adopted by the Commission — either actually or in the form of a deemed refusal under Article 8(3) of Regulation (EC) No 1049/2001 — in the context of the processing of the applicant's application for access to documents of 18 January 2008 and 19 January 2008 and his confirmatory application of 22 February 2008, 18 April 2008 and, in particular, 21 April 2008, in so far as they refuse those applications either in part or in full;

— order the European Commission to pay the applicant compensation for the immaterial and moral damage suffered by the applicant as a result of the processing of his application, of an appropriate amount, but at least symbolic damages in the amount of 1 Euro;

— order the European Commission to pay the costs of the procedure

Pleas in law and main arguments

On 18 and 19 January 2008, the applicant applied to the Commission for access to numerous documents. The applicant brings the present application because he was not granted access to those documents, at least partly, within the period provided for.

In support of his application, the applicant submits, in particular, that the defendant infringed Article 255 EC as well as Regulation No 1049/2001 (1). In addition, the applicant claims that there has been an infringement of the principles of good administration, Articles 41 and 42 of the Charter of Fundamental Rights and the principles governing the obligation to state reasons for refusal decisions laid down in Article 253 EC.

(1) 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 260/18

Action brought on 25 August 2008 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a small bell with a red ribbon)

(Case T-346/08)

(2008/C 260/33)

Language in which the application was lodged: German

Parties

Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

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 June 2008 (Appeal Case R 943/2007-4); and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional mark, representing a small bell with a red ribbon, for goods in Class 30 (Application No 4 770 831).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has the necessary distinctive character and its availability does not have to be preserved.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 247/14

Action brought on 11 July 2008 — Land Burgenland v Commission

(Case T-268/08)

(2008/C 247/27)

Language of the case: German

Parties

Applicant: Land Burgenland (represented by: U. Soltész and C. Herbst, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Pursuant to Article 231(1) EC, annul Commission Decision C(2008) 1625 final of 30 April 2008 (No C 56/2006, ex NN 77/2006 — Privatisation of the Bank Burgenland) in its entirety;

— Pursuant to Article 87(1) of the Rules of Procedure of the Court, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1625 final of 30 April 2008 in which the Commission decided that the State aid which Austria granted in contravention of Article 88(3) EC to the Versicherungsgesellschaft Grazer Wechselseitige Versicherung AG and the GW Beteiligungserwerbs- und -verwaltungs-GmbH in the context of the privatisation of the HYPO Bank Burgenland AG is incompatible with the common market.

The applicant makes the following pleas in law in support of its action:

— erroneous application of Article 87(1) EC by the Commission when it fixed the market price, as a tender procedure is not mandatory;

— erroneous application of Article 87(1) EC by the Commission as a result of the infringement of existing Commission practice;

— erroneous application of Article 87(1) EC by the Commission since a private seller would also have had to predict that the Austrian Financial Market Authority would reject the bidder which made the highest bid;

— erroneous application of Article 87(1) EC by the Commission since the applicant should have been allowed to take into account the legal guarantee (‘Ausfallhaftung’) for certain liabilities of the privatised bank in its decision to award aid;

— erroneous application of the private vendor principle by the Commission when assessing the influence of the legal guarantee on the decision to sell;

— erroneous application of Article 87(1) EC by the Commission as a result of mistaken application of the burden of proof or of the obligation to submit evidence in a tender procedure;

— erroneous application of Article 87(1) EC by the Commission since the tender by the bidder with the highest offer cannot operate as the basis for the determination of the market price;

— incorrect assessment of the economic value of the share issues of the privatised bank by the Commission; and
EN Official Journal of the European Union C 272/41

Action brought on 19 August 2008 — Hess Group v OHIM — Coloma Navarro (COLOMÉ)

(Case T-341/08)

(2008/C 272/81)

Language in which the application was lodged: Spanish

Parties

Applicant: Hess Group AG (Berna, Switzerland) (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: José Félix Coloma Navarro (Badajoz, Spain)

Form of order sought

— Declare the action against the Decision of the First Board of Appeal of OHIM of 21 May 2008 lodged in time and in the required form and, via the appropriate procedure, order the annulment of that decision and order expressly that OHIM 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 ‘COLOMÉ’ for goods in Class 33 (wines) (Application for Registration No 2.140.283).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: D. José Félix Coloma Navarro.

Trade mark right of applicant for the declaration: Spanish figurative marks ‘COLOMA’ for goods in Class 33 (wines).

Decision of the Cancellation Division: Application for declaration of invalidity upheld.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 272/34

Action brought on 12 August 2008 — Pescazzurra v Commission

(Case T-316/08)

(2008/C 272/64)

Language of the case: Italian

Parties

Applicant: Pescazzurra Srl (Messina, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 272/37

Action brought on 12 August 2008 — Pepito Pesca v Commission

(Case T-325/08)

(2008/C 272/73)

Language of the case: Italian

Parties

Applicant: Pepito Pesca Srl (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 272/34

Action brought on 12 August 2008 — Corrado v Commission

(Case T-315/08)

(2008/C 272/63)

Language of the case: Italian

Parties

Applicant: Corrado Signorello (Portopalo di Capo Passero, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 285/44

Action brought on 26 August 2008 — Aragonesas Industrias y Energía v Commission

(Case T-348/08)

(2008/C 285/82)

Language of the case: English

Parties

Applicant: Aragonesas Industrias y Energía, SA (Barcelona, Spain) (represented by: I. Forrester, K. Struckmann, P. Lindfelt, J. Garcia-Nieto Esteva, lawyers)

Defendant: Commission

Form of order sought

— Annul Commission decision of 11 June 2008 — Case COMP/F/38.695 — Sodium Chlorate as far as it relates to Aragonesas; or

— Amend Articles 1 and 2 of the decision to annul or substantially to reduce the fine imposed on Aragonesas; and

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

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) 2626 final of 11 June 2008 (Case COMP/38.695 — Sodium Chlorate) relating to a proceeding under Article 81(1) EC and Article 53(1) EEA in so far as it relates to the applicant. Alternatively, it seeks the amendment of the Articles 1 and 2 of the decision in so far as it imposes a fine on the applicant.

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

First, the applicant submits that the Commission committed a manifest error of appraisal in finding that the applicant had participated in a cartel between late 1994 and 2000, allocating sales volumes and fixing prices for sodium chlorate. It claims that the level of evidence put forward by the Commission in the decision is insufficient to establish to the requisite legal standard the applicant's participation in a single continuous infringement.

Second, the applicant argues that there has been an infringement of the principles of proportionality and equal treatment by reason of the fact that the Commission, in its calculation of the basic amount of the fine:

— wrongly assessed the gravity of the infringement with regard to the applicant;

— wrongly applied the entry fee to the applicant;

— failed to properly assess the duration of the infringement; and
EN Official Journal of the European Union C 313/53

Action brought on 10 October 2008 — Commission v Acentro Turismo

(Case T-460/08)

(2008/C 313/94)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu, A. Caeiros, acting as Agents)

Defendant: Acentro Turismo SpA (Milan, Italy)

Form of order sought

— order Acentro Turismo SpA to pay the sum of EUR 13 497,46 by way of capital;

— order that company to pay the sum of EUR 2 278,55 in default interest payable up to the date of lodging of the present application, and default interest which will be payable after the date of lodging of this application up to the date of the actual payment of the capital, to be quantified ultimately on the basis of the interest rate established by Italian law;

— order that company to pay default interest on the aforesaid interest payable up to the date of lodging of the present application, to be quantified ultimately on the basis of the interest rate established by Italian law;

— order that company to pay the costs.

Pleas in law and main arguments

By the present application the European Commission, as representative of the European Atomic Energy Community (Euratom), asks the Court to order the company incorporated under Italian law, Acentro Turismo SpA, to pay the sum of EUR 13 497,46, plus default interest, owed on the basis of the rules relating to performance laid down by contract No 349-90-04 TL ISP I for the provision of services, concluded in 1990 and intended to give that company the functions of travel agent on the Ispra site.

The Commission submits in that regard that Acentro did not honour two invoices, issued by the Commission itself on the basis of Article 8 of the contested contract, and that the existence of that credit is sufficiently proven with regard to the content of that contract and the credit in question is therefore irrefutable, liquid and collectable.
EN Official Journal of the European Union C 301/42

Action brought on 27 August 2008 — Peek & Cloppenburg and van Graaf v OHIM — Thailand (Thai Silk)

(Case T-361/08)

(2008/C 301/71)

Language in which the application was lodged: German

Parties

Applicants: Peek & Cloppenburg (Hamburg, Germany) and van Graaf GmbH & Co. KG (Vienna, Austria) (represented by: V. von Bombard, A. Renck, T. Dolde and J. Pause, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Thailand

Form of order sought

— annulment of the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) No R 1677/2007-4 of 10 June 2008

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Thailand

Community trade mark concerned: The figurative trade mark ‘Thai Silk’ with the colours ‘dark blue and white’ for goods in Classes 24 and 25 (Registration No 4 099 297)

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

Mark or sign cited in opposition: Representation of a black and white peacock for goods and services in Classes 18, 25 and 35.

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as there is a likelihood of confusion between the trade marks at issue due to their similar overall impression.