ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 55/41

Action brought on 22 December 2008 — Germany v Commission

(Case T-571/08)

(2009/C 55/74)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of 30 October 2008 in the proceedings ‘State aid C 36/2007 — State aid to Deutsche Post AG’ concerning the information injunction;

— order the defendant to pay the costs.

Pleas in law and main arguments

The action is directed against the decision of the Commission of the European Communities (C (2008) 6468) of 30 October 2008 by which, in State aid procedure C 36/2007 (ex NN 25/2007), the Commission required Germany, pursuant to Article 10(3) of Regulation (EC) No 659/1999 (1), to send all the documents, information and data required in order to assess the costs and revenues of Deutsche Post in the period from 1989 to 2007.

The applicant raises two pleas in law.

By the first plea in law, the applicant claims that the information injunction infringes essential rules as to form.

— The requirements as to the valid setting of a time-limit and as to a ‘reminder, allowing an appropriate additional period’ in accordance with Articles 5(2) and 10(3) of Regulation No 659/1999 were not satisfied. In the alternative, the applicant observes that the period allowed in the information injunction itself was disproportionate.

— Furthermore, the information injunction does not safeguard the protection enshrined in Article 287 EC of Deutsche Post AG's business secrets, since the data would presumably be passed to an external undertaking — which might also be working for competitors of Deutsche Post AG — for analysis, and the Commission refuses to provide further details in that regard.

By its second plea in law, the applicant claims that the information injunction also infringes Articles 87(1) EC and 86(2) EC in conjunction with the principles of proportionality and legal certainty, since the data requested are not necessary for the assessment in terms of State-aid law of any of the three State measures at issue in the proceedings.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 153/53

Corrigendum to the notice in the Official Journal in Case T-126/09

( Official Journal of the European Union C 129, 6 June 2009, p. 18 )

2009/C 153/102

The notice in the Official Journal concerning Case T-126/09 Italy v Commission and EPSO is to read as follows:
EN Official Journal of the European Union C 69/52

Action brought on 28 January 2009 — A. Loacker SpA v OHIM

(Case T-42/09)

(2009/C 69/114)

Language in which the application was lodged: Italian

Parties

Applicant: A. Loacker SpA (Renon, Italy) (represented by: V. Bilardo, C. Bacchini, M. Mazzitelli, 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: Editrice Quadratum SpA (Milan, Italy)

Form of order sought

— Annul the contested decision;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Editrice Quadratum SpA.

Community trade mark concerned: Word mark ‘Quadratum’, registration application No 4653481, for goods in Class 30.

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

Mark or sign cited in opposition: Community word mark ‘LOACKER QUADRATINI’, for goods in Class 30.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Action brought by the trade mark applicant upheld.

Pleas in law: Infringement of Article 8(1)(b) and of Articles 73 and 74 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
EN Official Journal of the European Union C 55/46

Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission

(Case T-9/09 P)

(2009/C 55/83)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— In every case (A.1) set aside in its entirety and without exception the order under appeal; (A.2) declare the action at first instance to be admissible in full.

— As a primary remedy: (B.1) uphold in their entirety and without exception the appellant's pleas in law set out in the application at first instance; (B.2) order the respondent to pay the appellant's costs relating to this appeal and to the proceedings at first instance;

— or, in the alternative: (B.3) refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

This appeal is directed against the order of the Civil Service Tribunal of 4 November 2008 in Case F-133/06 Marcuccio v Commission.

In support of the forms of order sought by him, the appellant raises the following pleas in law:

(a) complete failure to carry out preliminary investigations and failure to rule on a fundamental aspect of the dispute, in so far as the order under appeal fails to adjudicate on the application for a declaration that there is no legal basis for the decision contested before the Civil Service Tribunal.

(b) complete failure to state adequate reasons in the order under appeal as regards the inadmissibility of the requests that ‘the Commission be ordered to return his personal property to the applicant’, ‘that the contested decision be annulled’ and of ‘the application for damages’, as regards the order that the appellant should pay the costs, and distortion and misrepresentation of the facts, complete failure to carry out any preliminary investigations, confusion and irrationality, and also the erroneous and incorrect interpretation and application of the Community legislation and case-law.

(c) a procedural error, in that no account was taken of the requirement not to have regard to the arguments contained in the defence in so far as made out of time by the respondent, in a manner which was prejudicial to the interests of the appellant.
EN Official Journal of the European Union C 102/18

Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat)

(Case T-55/09)

2009/C 102/30

Language in which the application was lodged: German

Parties

Applicant: Daniel Swarovski (Volders, Austria) (represented by: R. Küppers, 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: Swarovski AG (Triesen, Liechtenstein)

Form of order sought

— Annul the decision of the First Board of Appeal of 9 November 2008 in Case R 0348/2008-1;

— dismiss the appeal;

— order the intervener to pay the costs of the proceedings, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Daniel Swarovski

Community trade mark concerned: Word mark ‘Daniel Swarovski Privat’ for goods and services in classes 3, 4, 8, 9, 15, 16, 18, 20, 21, 26, 28, 29, 30, 31, 32, 33, 39 and 44 (application No 3 981 099)

Proprietor of the mark or sign cited in the opposition proceedings: Swarovski AG

Mark or sign cited in opposition: Word mark ‘DANIEL SWAROVSKI’ for goods and services in classes 16, 18, 21, 25 and 41 (Community trade mark No 3 895 133); word mark ‘Swarovski’ for goods and services in classes 2, 3, 6, 8, 9, 11, 16, 18, 19, 20, 21, 24, 25, 28, 34, 35 and 41 (Community trade mark No 3 895 091); word mark ‘Swarovski’ for services in class 36 (Austrian word mark No 218 795); word mark ‘Swarovski’ for goods in classes 11, 16, 21 and 34 (Austrian word mark No 96 389); and word mark ‘Swarovski’ for goods in classes 8, 9, 11, 14, 18, 21, 25 and 26 (international registration in respect of Italy No 528 189)

Decision of the Opposition Division: Opposition allowed in part

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the marks at issue or the requisite detriment to the earlier marks and, moreover, since the scope of protection of the earlier marks has been determined incorrectly.

(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 90/29

Action brought on 3 February 2009 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids)

(Case T-50/09)

2009/C 90/46

Language in which the application was lodged: English

Parties

Applicant: Ifemy’s Holding GmbH (Munich, Germany) (represented by: H.G. Augustinowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dada & Co Kids Srl (Prato, Italy)

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 27 November 2008 in case R 911/2008-4; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Dada & Co. kids’, for goods in class 25

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

Mark or sign cited: German trade mark registration No 30 114 449 of the word mark “DADA” for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of the principles of equal treatment, faithful competition and rule of law as enshrined in Article 2 and 3 EC, as well as Articles 43 and 80(1) of Council Regulation 40/04 and Rules 50(2) and 80(2) of Commission Regulation No 2868/95 (1), as the Board of Appeal failed to annul the decision of the Opposition Division which named the wrong applicant and, furthermore, as the Board of Appeal wrongly found that before the Opposition Division the applicant was given every opportunity to submit the relevant evidence.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
—

failure to take account of the definition of State Aid within the meaning of Article 87(1) EC inasmuch as the Commission found, contrary to what the French Government maintains, that those compulsory voluntary levies constitute parafiscal contributions, that is to say, State resources, although: — the procedure for recognising inter-branch organisations and the extension procedure for inter-branch agreements cannot be considered to be means for the State to implement a particular policy which it has previously defined; — the basis of assessment, the amount, the treatment and the use of compulsory voluntary levies are fixed by the inter-branch organisations in their agreements, the public authorities not intervening at any stage; — the compulsory voluntary levies are to be mandatorily used to finance the action for which they are intended and can never be put at the disposal of the public authorities; — persons liable to pay compulsory voluntary levies necessarily benefit from actions financed by those levies and all the operators in the sector bear the cost as purchasers or vendors of the produce concerned.
EN Official Journal of the European Union C 129/16

Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY)

(Case T-108/09)

2009/C 129/27

Language in which the application was lodged: English

Parties

Applicants: Ravensburger AG (Ravensburg, Germany) (represented by: R. Kunze, lawyer and Solicitor and G. Würtenberger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Educa Borras S.A. (Sant Quirze del Valles, Spain)

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 8 January 2009 in case R 305/2008-2; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “MEMORY” for goods in classes 9 and 28

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the term “memory” to be descriptive and lacking distinctive character at the time the cancellation proceedings took place, and thereby wrongly ignored that only those circumstances presented at the time of registration of the trade mark in question can be taken into account; Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the use of the term “memory” to be descriptive based on only two references of use within the European Community and without further determination whether these suggest descriptive use, thereby disregarding the long-term unchallenged use of the registered trade mark in question for games in a competitive consumer-oriented marketing; The Board of Appeal wrongly based its confirmation of the descriptive and non-distinctive character of the registered trade mark in question on unevaluated sources having their origin in countries outside the European Union; Infringement of Article 75 of Council Regulation 40/94 as the Board of Appeal erred when refusing to grant the request to summons for a hearing lodged by the applicant.
EN Official Journal of the European Union C 141/47

Action brought on 2 April 2009 — Bongrain v OHIM — Apetito (APETITO)

(Case T-129/09)

2009/C 141/98

Language in which the application was lodged: English

Parties

Applicants: Bongrain SA (Viroflay, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apetito AG (Rheine, Germany)

Form of order sought

— Set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2009 in case R 720/2008-4; and

— Order OHIM 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 ‘APETITO’, for goods in class 29 — application No 3 470 598

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 of the word mark ‘apetito’ for goods in classes 5, 11, 21 29, 30, 37, 39, 41 and 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (1) (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there is similarity of goods and hence likelihood of confusion between the trade marks concerned.

(1) Replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, OJ L 78, p. 1
EN Official Journal of the European Union C 153/43

Action brought on 17 April 2009 — Four Ace International v OHIM (skiken)

(Case T-156/09)

2009/C 153/84

Language in which the application was lodged: German

Parties

Applicant: Four Ace International Ltd (represented by G. Uphoff, 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 of 6 February 2009 — served on 11 February 2009 — in Case R 519/2008-4 concerning the application for Community trade mark No 5819371 and amend it so as to enable registration to proceed in respect of the following goods and services: Class 39 — travel arrangement and Class 41 — education; providing of training; entertainment; sporting and cultural activities;

— order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘skiken’ for services in Classes 35, 39, 41 and 43

Decision of the Examiner: Registration refused in part

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1)), since the trade mark applied for has the requisite distinctive character and there is no need for it to be allowed to remain available.

(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 167/19

Action brought on 25 May 2009 — TerreStar Europe v Commission

(Case T-196/09)

2009/C 167/37

Language of the case: English

Parties

Applicant: TerreStar Europe Ltd (London, United Kingdom) (represented by: R. Olofsson, lawyer, J. Killick, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— order the Commission to pay the costs;

— take such other of further steps as justice may require.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of Commission Decision C(2009) 3746 final/2 of 13 May 2009, regarding selection of operators of pan-European systems providing mobile satellite services (MSS) adopted in application of the Decision No 626/2008/EC (1) in so far as it rejects the application of the applicant.

In support of its claims, the applicant puts forward three pleas in law.

First, it submits that the Commission committed a manifest error of assessment in finding that TerreStar did not meet the required milestones. The applicant claims that the inconsistencies between the information and a lack of evidence in completion of one of the milestone as found by the Commission were due to a misunderstanding of the information submitted and could have been cleared up on a simple request by the Commission.

Second, the applicant contends that the Commission acted in breach of the principle of good administration and the principle of proportionality by failing to request clarification and to review the clarifications voluntarily submitted by TerreStar.

Third, in the alternative, the applicant claims that the contested decision lacks adequate reasoning.

(1) Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15)
EN Official Journal of the European Union C 167/14

Appeal brought on 24 April 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-38/08 Liotti v Commission

(Case T-167/09 P)

2009/C 167/29

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by B. Eggers and K. Herrmann, acting as Agents)

Other party to the proceedings: Amerigo Liotti (Senningerberg, Luxembourg)

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal of 17 February 2009 in Case F-38/08 Liotti v Commission;

— order the applicant to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal.

Pleas in law and main arguments

By this appeal, the Commission of the European Communities asks the Court of First Instance to set aside the judgment of the Civil Service Tribunal (‘the Tribunal’) of 17 February 2009 in Case F-38/08 Liotti v Commission, by which the Tribunal annulled Mr Liotti’s career development report (CDR) for the period from 1 January to 31 December 2006.

In support of its appeal, the Commission advances three pleas in law, alleging:

— an infringement of Community law in so far as Article 8(7) of the general provisions for implementing Article 43 of the Staff Regulations of Officials of the European Communities (‘the GIP’) does not lay down an obligation at countersigning officer level, or even at Director-General level, to consider the application of appraisal rules in all draft CDRs for a particular grade;

— breaches of procedure before the Tribunal adversely affecting the Commission’s interests since, by raising of its own motion at the hearing the requirements of concertation and consistency provided for in Article 8(7) of the GIP, the Tribunal infringed the Commission’s rights of defence by depriving it of the opportunity to produce conclusive factual evidence to prove that there was no infringement of Article 8(7) of the GIP when the CDR at issue was drawn up;
EN Official Journal of the European Union C 180/57

Action brought on 28 May 2009 — Yorma's AG v OHIM — Norma Lebensmittelfilialbetrieb (YORMAS’S)

(Case T-213/09)

2009/C 180/105

Language in which the application was lodged: German

Parties

Applicant: Yorma’s AG (Deggendorf, Germany) (represented by A. Weiß, 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: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

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 20 February 2009 in Case R 1879/2007-1; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark composed of a word element ‘YORMA’S’ in blue and yellow for services in Classes 35 and 42 (Registration No 2 048 205)

Proprietor of the mark or sign cited in the opposition proceedings: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

Mark or sign cited in opposition: Word mark ‘Norma’ (Community trade mark No 213 769) for goods in Classes 3, 5, 8, 16, 18, 21, 25, 28, 29, 30, 31, 32, 33, 34, 35 and 36 and the commercial symbol ‘NORMA’ used in the course of trade in Germany, as well as the figurative sign ‘NORMA’

Decision of the Examiner: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the appealed decision and rejection of the Community trade mark application.

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council Regulation No 40/94 (now Article 8(1)(b) and (4) 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).