ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 55/46

Action brought on 5 January 2009 — UniCredit v OHIM — Union Investment Privatfonds (UniCredit)

(Case T-4/09)

(2009/C 55/82)

Language in which the application was lodged: Italian

Parties

Applicant: UniCredit SpA (Rome, Italy) (represented by: G. Floridia, lawyer, and R. Floridia, 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: Union Investment Privatfonds GmbH (Frankfurt am Main, Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM delivered on 3 November 2008 in Case R 1449/2006-2, relating to opposition proceedings No B 699.746.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Multi-coloured figurative mark ‘1 UniCredit’ (the number one being 45° inclined to the right and impressed on the spherical logo) (registration application No 2.911.105), for goods and services in Classes 9, 16, 35, 36, 38, 39, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Union Investment Privatfonds GmbH.

Mark or sign cited in opposition: German word marks ‘UniSECTOR’, ‘UniDynamicFonds’ and ‘UniGarant’, for services in Classes 35 and 36.

Decision of the Opposition Division: Opposition upheld in respect of the services in Class 36.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant argues that the contested decision did not take account of the powers of perception of the public at which the services covered are directed or of the non-existent or minimal distinctiveness of the prefix ‘Uni’.
EN Official Journal of the European Union C 69/53

Action brought on 3 February 2009 — Cachuera v OHIM — Gelkaps (Ayanda)

(Case T-43/09)

(2009/C 69/115)

Language in which the application was lodged: Spanish

Parties

Applicant: La Cachuera SA (Misiones, Argentina) (represented by: E. Armijo Chávarri, 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: Gelkaps GmbH (Pritzwalk, Germany).

Form of order sought

— Declare the action against the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 19 November 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

Applicant for a Community trade mark: Gelkaps GmbH.

Community trade mark concerned: Word mark ‘AYANDA’ (Application No 3.315.405) for goods and services in Classes 3, 5, 28, 29, 30, 32 and 44.

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

Mark or sign cited in opposition: Spanish figurative and word marks ‘AMANDA’, for goods in Class 30.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 69/46

Action brought on 13 January 2009 — Gruber v OHIM (Run the globe)

(Case T-12/09)

(2009/C 69/102)

Language in which the application was lodged: German

Parties

Applicant: Alexander Gruber (Ulm, Germany) (represented by T. Kienle and M. Krinke, lawyers)

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

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 6 November 2008 (Case R 1779/2007-1);

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Run the globe’ for services in Class 41 — Application No 5 154 521

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 40/94 (1), as the registered mark has the necessary distinctive character.

(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 82/32

Action brought on 9 February 2009 — Commission v Antiche Terre

(Case T-51/09)

(2009/C 82/57)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Dal Ferro, lawyer, V. Joris, Agent)

Defendant: Antiche Terre scarl Società Agricola Cooperativa (Arezzo, Italy)

Forms of order sought

— Order the defendant to repay the principal sum of EUR 479 332,40, together with the interest accrued at the rate set out in Article 5.4.3 of the general conditions of the Contract (ECB rate + 2 %) from the date of receipt of the sums (from 4 December 1997 for the sum of EUR 461 979,00, and from 18 December 1997 for the sum of EUR 17 353,40) until 1 April 2003, in addition to the interest accrued at the same rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

— In the alternative, order the defendant to repay the principal sum of EUR 479 332,40, together with the interest accrued at the Italian statutory rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

— In any event, order Antiche Terre Società Agricola Cooperativa to pay the costs.

Pleas in law and main arguments

By the present action, brought under Article 238 EC, the Commission seeks the repayment of the sums advanced to the limited liability cooperative Antiche Terre scarl Società Agricola Cooperativa (‘Antiche Terre’), in the context of the THERMIE programme, for the creation of an installation producing electricity (10 MWe) through an innovative biomass combustion process. The reference contract (No BM/188/96) was drawn up between the Commission, Antiche Terre (as coordinator) and two other companies having their seats in Finland and Spain respectively.

Antiche Terre built up a number of significant delays in commencing its own task, and it requested several extensions so as to be able to complete its work, which it obtained. It also proposed a substantial change to the installation, which would have meant abandoning the innovative biomass combustion process and producing energy in substantially smaller quantities than had been estimated.

The Commission was unable to authorise such a fundamental change to the project, which would have had no chance of funding under the THERMIE programme.

Consequently, since it was found that Antiche Terre would not have completed the installation in accordance with the terms of the project originally submitted, the Commission was forced to withdraw from contract BM/188/96, making it clear moreover that the failure to complete the original project could have entailed the repayment in whole or in part of the advance paid to Antiche Terre.

The Commission therefore asked Antiche Terre on a number of occasions to repay the sums advanced, in the amount of EUR 479 332,40, but it did not receive any payment. After calling on the guarantee, and after further requests for repayment of the balance, the Commission therefore brings the present action before the Court of First Instance.
EN Official Journal of the European Union C 102/20

Action brought on 16 February 2009 — Herhof v OHIM — Stabilator (stabilator)

(Case T-60/09)

2009/C 102/32

Language in which the application was lodged: German

Parties

Applicant: Herhof-Verwaltungsgesellschaft mbH (Solms, Germany) (represented by: A. Zinnecker and T. Bösling, 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: Stabilator sp. z o.o. (Gydnia, Poland)

Form of order sought

— Anuul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in Joined Cases R 483/2008-4 and R 705/2008-4;

— Order the applicant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Stabilator sp. z o.o.

Community trade mark concerned: the figurative mark ‘stabilator’ for goods and services in Classes 19, 37 and 42, Application No 4 068 961

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

Mark or sign cited in opposition: the word mark ‘STABILAT’ for goods in Classes 1, 7, 11, 20, 37, 40 and 42

Decision of the Opposition Division: opposition allowed in part and application rejected in part

Decision of the Board of Appeal: annulment in part of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94, (1) because there is a likelihood of confusion between the marks at issue or at least a likelihood of association.

(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 90/34

Action brought on 17 February 2009 — hofherr communikation v OHIM (NATURE WATCH)

(Case T-77/09)

2009/C 90/53

Language of the case: English

Parties

Applicant: hofherr communikation GmbH (Innsbruck, Austria) (represented by S. Warbek, lawyer)

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

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 4 December 2008 in case R 1410/2008-1 and allow registration of the trade mark applied for; and

— Order OHIM to pay the legal costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark “NATURE WATCH” for goods and services in classes 9, 39, 41 and 43 — international registration No WOO 957 541

Decision of the examiner: Refusal to register the mark applied for as a Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal wrongly concluded that the trade mark applied for is a descriptive one and, furthermore, that the trade mark applied for lacks distinctive character.
EN Official Journal of the European Union C 113/42

Action brought on 24 March 2009 — Electrolux v Commission

(Case T-115/09)

2009/C 113/84

Language of the case: English

Parties

Applicant: AB Electrolux (Stockholm, Sweden) (represented by: F. Wijckmans, H. Burez, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in its entirety on account of the fact that one or more of the (cumulative) conditions of the Community guidelines on State aid for rescuing and restructuring firms in difficulty are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met;

— in subsidiary order, annul the decision in its entirety on account of the failure to comply with the duty to state reasons laid down in Article 253 EC;

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

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 5995 final of 21 October 2008 declaring compatible with the common market the restructuring aid to be paid out by the French authorities to FagorBrandt company, subject to a number of conditions [C 44/2007 (ex N 460/2007)]. The applicant is a competitor to the beneficiary of the aid and has participated in the investigation procedure leading to the adoption of the contested decision.

The applicant claims that the contested decision infringes Article 87(3)(c) EC and the Community guidelines on State aid for rescuing and restructuring firms in difficulty (1). In the applicant’s opinion, the holding of the decision is incorrect as a matter of law on account of the fact that one or more of the cumulative conditions of the abovementioned guidelines are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met. In particular, the applicant submits that the Commission failed to comply with:

— the ‘one time, last time’ condition,

— the condition that restructuring aid may not serve to keep firms artificially alive,

— the conditions as to the assessment of previous unlawful aid,

— the condition that the beneficiary of the aid must be a firm in difficulty,

— the condition that the beneficiary of the aid should not be a newly created firm,

— the condition that the beneficiary of the aid must restore the long-term viability of the beneficiary,

— the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid, and

— the condition that the aid must be limited to the minimum and that a real contribution (free of aid) must be made by the business group.

Furthermore, the applicant contends that the contested decision infringes the duty to state reasons laid down in Article 253 EC in particular with respect to the arguments advanced by the applicant regarding the structural overcapacity in the sector, the contribution of the beneficiary to the costs of the restructuring plan that must be ‘as high as possible’ and the repayment obligation of previous unlawful aid.

(1) OJ 2004 C 244, p. 2
EN Official Journal of the European Union C 129/17

Action brought on 26 March 2009 — Gruener Janura AG v OHIM — Centum Aqua Marketing (HUNDERTWASSER)

(Case T -125/09)

2009/C 129/30

Language in which the application was lodged: German

Parties

Applicant: Gruener Janura AG (represented by: P. Endres, 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: Centum Aqua Marketing GmbH (Magdeburg, Germany)

Form of order sought

— Reject application No 4491891 for the trade mark ‘Hundertwasser’ for the following goods and services: — Class 20: Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics; — Class 30: Sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; confectionery, candyfloss; — Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; seeds, natural plants and flowers; foodstuffs for animals; malt; products from organic farming, flowers, arrangements, plant arrangements; — Class 35: Advertising, marketing concepts; — Class 39: Transport, packaging and storage of goods; travel arrangement, exhibition guides, city and building guides, tourist services, package holidays;

— Order the applicant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Centum Aqua Marketing GmbH

Community trade mark concerned: the word mark ‘HUNDERTWASSER’ for goods and services in Classes 20, 25, 30, 31, 32, 35, 39 and 42 (application No 4 491 891)

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

Mark or sign cited in opposition: the word mark ‘FRIEDENSREICH HUNDERTWASSER’ for goods and services in Classes 3, 16, 19, 24, 25, 27, 32 and 33 (Community trade mark No 1 825 629) and the word mark ‘HUNDERTWASSER’ for goods and services in Classes 14, 16, 18, 19, 21, 24, 41 and 42 (Community trade mark No 1 931 393)

Decision of the Opposition Division: partial rejection of the opposition

Decision of the Board of Appeal: annulment of the Opposition Division’s decision and partial upholding of the appeal as well as partial rejection of the application

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 as there is a likelihood of confusion between the marks at issue
EN Official Journal of the European Union C 141/57

Action brought on 28 April 2009 — Vidieffe Srl v OHIM

(Case T-169/09)

2009/C 141/115

Language in which the application was lodged: Italian

Parties

Applicant(s): Vidieffe Srl (Bologna, Italy) (represented by: M. Lamandini, avvocato, D. De Pasquale, avvocato, and M. Pappalardo, avvocato)

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

Other party to the proceedings before the Board of Appeal of OHIM: Perry Ellis International Group Holdings Ltd

Form of order sought

— Annul, for breach of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ 2009 L 78, p. 1) and/or misuse of powers, the decision of 12 February 2009 of the first Board of Appeal of OHIM insofar as it upholds the appeal in part and annuls the part of the decision of the Opposition Division of OHIM which rejects the opposition in relation to ‘leather and imitations of leather, and goods made of these materials and not included in other classes; trunks and travelling bags; umbrellas, parasols and walking sticks’ in Class 18 and all goods in Class 25; as a result, uphold in full the decision of the Opposition Division of OHIM (proceedings No B 909 350 of 22 February 2008).

— Order OHIM to take the necessary measures to comply with the decision of the Court of First Instance.

— Order OHIM and Perry Ellis to bear all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Vidieffe Srl

Community trade mark concerned: word mark ‘GOTHA’ (application for registration No 3 665 957), for goods in Classes 18 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: Perry Ellis International Group Holdings Ltd.

Mark or sign cited in opposition: figurative Community trade mark ‘gotcha’ (No 2 896 199) for goods in Classes 3, 18 and 25.

Decision of the Opposition Division: rejection of the opposition in its entirety.

Decision of the Board of Appeal: appeal partially upheld.

Pleas in law: breach of Article 8(1)(b) of Regulation No 40/94 (replaced by Regulation No 207/2009) and misuse of powers in finding that there is a likelihood of confusing signs which are not likely to be confused.
EN Official Journal of the European Union C 153/41

Action brought on 9 April 2009 — Trelleborg Industrie v Commission

(Case T-147/09)

2009/C 153/81

Language of the case: English

Parties

Applicant: Trelleborg Industrie SAS (Clermont Ferrand, France) (represented by: J. Joshua, Barrister and E. Aliende Rodríguez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul in part Article 1 of the contested decision insofar as it relates to the applicant and in any event at least insofar as it finds the commission of any infringement by the applicant prior to 21 June 1999;

— reduce the fine imposed on the applicant in Article 2 so as to correct the manifest errors in the decision;

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

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009) 428 Final of 28 January 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/39406 — Marine Hoses insofar as it holds it liable for participation in a single and continuous infringement in the marine hose sector in the EEA, which consisted of allocating tenders, fixing prices, fixing quotas, fixing sales conditions, geographic market sharing, and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore, it seeks the reduction of the fine imposed on the applicants.

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

First, it submits that the Commission’s power to impose fines for any period before 21 June 1999 is time barred under Article 25(1) of Regulation 1/2003 as the applicant argues that the Commission made manifest error in fact and law in finding that the applicant had committed a single and continuous infringement.

Second, it claims that the Commission has no legitimate interest in making a declaratory finding of infringement for the first period which had come to an end in May 1997.

Third, alternatively, the applicant argues that the Commission has unlawfully discriminated against it in treating it differently from another addressee as regards liability for a corporate predecessor and has breached the right to be heard and the obligation to give reasons.
EN Official Journal of the European Union C 167/17

Action brought on 13 May 2009 — Longevity Health Products v OHIM — Performing Science (5 HTP)

(Case T-190/09)

2009/C 167/34

Language in which the application was lodged: German

Parties

Applicant: Longevity Health Products, Inc (represented by: J. Korab, 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: Performing Science LLC

Forms of order sought

— Declare the appeal of Longevity Health Products, Inc admissible,

— Annul the decision of the Fourth Board of Appeal of 21 April 2009 and dismiss the application by Performing Science LLC that Community trade mark No 002846483 — ‘5 HTP’ be declared invalid, and

— Order the Office for Harmonisation in the Internal Market 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: the word mark ‘5 HTP’ for goods and services in Classes 5, 16 and 35 (Community trade mark No 2 846 483).

Proprietor of the Community trade mark: Longevity Health Products, Inc.

Applicant for the declaration of invalidity: Performing Science LLC.

Decision of the Cancellation Division: Application for declaration of invalidity of the trade mark concerned partially granted.

Decision of the Board of Appeal: Dismissal of the applicant’s appeal.

Pleas in law: Infringement of Article 7(1)(d) of Regulation (EC) No 40/94 (now Article 7(1)(d) of Regulation (EC) No 207/2009 (1).

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