ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 19/33

Action brought on 14 November 2008 — Sun World International v OHIM — Kölla Hamburg Overseas Import (SUPERIOR SEEDLESS)

(Case T-493/08)

(2009/C 19/62)

Language in which the application was lodged: English

Parties

Applicant: Sun World International LLC (Bakersfield, United States) (represented by: M. Holah, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Kölla Hamburg Overseas Import GmbH & Co. KG (Hamburg, 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 3 September 2008 in case R 1378/2007-1; 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 ‘SUPERIOR SEEDLESS’ for goods in class 31 — Community trade mark registration No 610 980

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: Partial invalidity of the Community trade mark concerned

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 7(3) and 51(2) of Council Regulation No 40/94 as the Board of Appeal: (i) wrongly identified the relevant public; (ii) wrongly refused to allow a withdrawal of the Community trade mark registration in respect of some of the goods in the specification; (iii) made an unlawful assumption based on the lack of a United Kingdom or Irish registration; and (iv) incorrectly assessed the evidence filed.
EN Official Journal of the European Union C 6/34

Action brought on 6 October 2008 — Coverpla v OHIM — Heinz-Glas (design)

(Case T-450/08)

(2009/C 6/69)

Language in which the application was lodged: French

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and M. Chaminade, 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: Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

— Annul the decision of the Third Board of Appeal of 7 July 2008 (Case R 1411/2007-3) in so far as it dismissed the applicant's appeal and declared the Community design ‘Tour’ No 29178-0002 invalid;

— declare Community design ‘Tour’ No 29178-0002 in class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community design No 29178/0002 for ‘phials’

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered phial named ‘Empire’ (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite novelty; the documents which Heinz-Glas GmbH submitted to show that it disclosed to the public a prior design of an identical phial have no evidential value.
—

Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/894/EC and 2002/540/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and
EN Official Journal of the European Union C 32/47

Action brought on 2 December 2008 — Diputación Foral de Álava v Commission

(Case T-529/08)

(2009/C 32/90)

Language of the case: Spanish

Parties

Applicant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2002/820/EC and 2002/892/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and

— An order that the Commission should pay the costs.

Pleas in law and main arguments

The purpose of the present action is to challenge the decision in which the defendant takes the view that, in implementing the decisions of 11 July 2001, on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (Decision 2002/820/EC) and on the State aid scheme applied by Spain to certain newly established firms in Álava (Decision 2002/892/EC) (1), the rate of interest to be applied in the recovery is a compound rate of interest.

In the applicant's view, that decision constitutes a clear de facto modification of the decisions of 11 July 2001, which, in turn, represents a manifest abuse of power and an infringement of the principle of sound administration. In that connection, it should be pointed out that the application of a compound rate of interest was introduced into Community law for the first time by Article 11(2) of Commission Regulation (EC) No 794/2004 of 21 April 2004, laying down detailed rules for the application of Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 140, p. 1). However, that provision is not applicable ratione temporis to the Decisions of 11 July 2001.

Similarly, the change to the actual contents of those decisions made by the Commission, in terms of the rate of interest applicable, is an infringement of the principle of equal treatment, since both the authorities charged with implementing the Decisions of 17 July 2001 and the companies affected have been placed in a different position from that of the competent authorities in the Member States (and companies) affected by decisions for the recovery of aid contemporaneous with or prior to July 2001 which have not been required to pay compound interest in the aid recovery process.

Finally, the applicant submits that, by requiring compound interest, the Commission is imposing a penalty not provided for in Community law.

(1) Both decisions were challenged before the Court of First Instance (Cases T-227/01 Diputación Foral de Álava and Gobierno Vasco v Commission, and T-230/01 Diputación Foral de Álava and Gobierno Vasco v Commission, still sub judice).
EN Official Journal of the European Union C 32/42

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-498/08)

(2009/C 32/82)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

— order the Commission to pay the costs incurred by the applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Lübeck Blankensee airport.

The pleas in law and main arguments relied on by the applicant are similar to those relied on in Case T-494/08 Ryanair v Commission.

(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 44/54

Action brought on 3 December 2008 — Telekomunikacja Polska v Commission

(Case T-533/08)

(2009/C 44/95)

Language of the case: Polish

Parties

Applicant: Telekomunikacja Polska SA (Warsaw, Poland) (represented by H. Romańczuk, M. Modzelewska de Raad and S. Hautbourg, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2008) 4997 of 4 September 2008 requiring the undertaking Telekomunikacja Polska SA and all undertakings directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation No 1/2003 (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 4997 of 4 September 2008 requiring the undertaking Telekomunikacja Polska SA and all undertakings directly or indirectly, wholly or partly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation No 1/2003, in connection with a procedure concerning the alleged application of practices incompatible with Article 82 EC in the electronic communications sector.

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

First, the applicant claims that the contested decision was taken in breach of the obligation to state proper reasons laid down in Article 253 EC and Article 20(4) of Council Regulation No 1/2003. In this connection the applicant complains that the Commission did not demonstrate in a satisfactory manner that it was in possession of information and evidence on the basis of which it could reasonably be asserted that the applicant had committed the infringement it was accused of. Moreover, according to the applicant, the Commission's decision did not describe with sufficient precision the facts which the Commission intended to examine in the course of the inspection. The applicant further submits that the Commission breached the obligations of describing in the contested decision the essential features of the infringement the applicant was accused of.

Second, the applicant claims that the contested decision infringed the principle of proportionality, in that the Commission did not, according to the applicant, choose the method of carrying out the procedure which would have been the least oppressive for the applicant.

Third, the applicant claims that the Commission did not ensure the applicant's rights of defence, particularly in connection with the infringements alleged by the applicant in relation to the contested decision in the first plea in law. In connection with the above, the applicant submits that it was not able to determine clearly what practices would be the subject of the Commission inspection and consequently to make a proper assessment of whether and to what extent the inspection was justified or of its obligation to cooperate with the Commission in the course of the inspection.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 55/41

Action brought on 22 December 2008 — Deutsche Post v Commission

(Case T-570/08)

(2009/C 55/73)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund and T. Lübbig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

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

— 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 four pleas in law.

In the first, second and third pleas, the applicant submits that the decision should be annulled on the grounds of an infringement of essential rules as to form and procedure, in that

— 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;

— the information injunction exhibits serious failings in regard to the obligation to state reasons and thus infringes Article 253 EC;

— the Commission failed, contrary to Articles 287 EC and 10 EC, to give the Federal Government and the applicant an opportunity to submit comments on the protection of the applicant's business secrets.

By its fourth plea in law, the applicant claims that the contested decision should, moreover, be annulled on the grounds of an infringement of substantive Community law, because the use of the requested data concerning costs and revenues in respect of the period from 1 January 1995 to 31 December 2007 for the purposes of examining the ‘financial compensation’ conflicts with the 2005 Community Framework and with the division of powers between Member States and the Commission; infringes Articles 86(2) EC and 87(1) EC in conjunction with the principles of proportionality, legal certainty and the Community-law prohibition of discrimination; and, finally, is manifestly inappropriate for the assessment in terms of State-aid law of pension and liability provisions.

(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 82/26

Action brought on 29 December 2008 — Evropaïki Dynamiki v Commission

(Case T-591/08)

(2009/C 82/47)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and P. Katsimani, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul EUROSTAT's decision to select the bid of the applicant, filed in response to the open Call for Tenders for the ‘Statistical Information Technologies’, Lot 2 ‘SDMX development’ and Lot 3 ‘SDMX support’ as second contractor of the cascade mechanism (OJ 2008/S 120-159017) communicated to the applicant by two separate letters dated 17 October 2008 and all further related decisions of EUROSTAT including the one to award the contract to the successful contractor;

— order EUROSTAT to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 4 326 000;

— order EUROSTAT to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

By means of its application the applicant seeks the annulment pursuant to Article 230 EC of the decisions of EUROSTAT to select the bid of the applicant, filed in response to the open Call for Tenders for the ‘Statistical Information Technologies’, Lot 2 ‘SDMX development’ and Lot 3 ‘SDMX support’ as second contractor of the cascade mechanism (OJ 2008/S 120-159017) which were communicated to the applicant by two separate letters dated 17 October 2008, as well as the award of damages pursuant to Article 235 EC.

The applicant claims that EUROSTAT committed various manifest errors of assessment, whereas fundamental rules and principles of public procurement have been allegedly infringed by the contracting authority. It is submitted that the evaluation of the applicant's tender was deficient, that EUROSTAT failed to state reasons, denied to address the applicant's detailed administrative appeal and associated observations and that it did not present the results of its internal examination to the applicant.

The applicant further submits that the treatment of the candidates was discriminatory; that the exclusion criteria were not complied with by one of the members of the winning consortium and that Articles 93(1) and 94 of the Financial Regulation were infringed. Moreover, the applicant contends that should the Court find that the defendant infringed the Financial Regulation and/or the principles of transparency and of equal treatment, given the fact that the Court will rule on the application — in all likelihood — after the contract has been fully executed, the applicant requests monetary compensation EUR 4 326 000 from EUROSTAT, corresponding to its estimated gross profit from the public procurement procedure Lot 2 and Lot 3, should it have been awarded the contract.
EN Official Journal of the European Union C 55/35

Action brought on 16 December 2008 — iPublish Ganske Interactive Publishing v OHIM (representation of a navigational device)

(Case T-555/08)

(2009/C 55/63)

Language in which the application was lodged: German

Parties

Applicant: iPublish Ganske Interactive Publishing GmbH (Hamburg, Germany) (represented by V. Knies, 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 3 October 2008 in Case R 709/2008-4 and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark representing a navigational device in the colours black and blue, characterised inter alia by a blue lateral stripe, for goods and services in Classes 9, 39 and 42 (application No 6 092 639).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), since the trade mark applied for has the required 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 55/47

Action brought on 14 January 2009 — Formula One Licensing v OHIM — Racing — Live (F1 — Live)

(Case T-10/09)

(2009/C 55/84)

Language in which the application was lodged: English

Parties

Applicant: Formula One Licensing BV (Amsterdam, The Netherlands) (represented by: B. Klingberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Racing — Live SA (Montpellier, France)

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 16 October 2008 in case R 7/2008-1;

— Order the defendant to pay the costs of proceedings; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the defendant.

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 ‘F1 — Live’, for goods and services in classes 16, 38 and 41

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

Mark or sign cited: International trade mark registration No 732 134 of the word mark ‘F1’ for goods and services in classes 16, 38 and 41; German trade mark registration No 30 007 412 of the word mark ‘F1’ for services in class 41; United Kingdom trade mark registration No 2 277 746 D of the word mark ‘F1’ for goods and services in classes 16 and 38; Community trade mark registration No 631 531 of the figurative mark ‘F1 Formula 1’ for goods and services in classes 16, 38 and 41; other marks such as ‘F1 Racing Simulation’, ‘F1 Pole Position’ and ‘F1 Pit Stop Café’

Decision of the Opposition Division: Rejected the Community trade mark application

Decision of the Board of Appeal: Annulled the contested decision, rejected the opposition and allowed the Community trade mark application to proceed

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal failed to find that use of the Community trade mark concerned would without due cause take unfair advantage of, and be detrimental to, the distinctive character or the repute of the applicant's earlier trade marks.
EN Official Journal of the European Union C 69/49

Action brought on 19 January 2009 — Johnson & Johnson v OHIM — Simca (YourCare)

(Case T-25/09)

(2009/C 69/108)

Language in which the application was lodged: English

Parties

Applicant: Johnson & Johnson GmbH (Düsseldorf, Germany) (represented by: A. Gérard, lawyer)

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

Other party to the proceedings before the Board of Appeal: Simca Srl (Cesano Boscone (MI), Italy)

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 in case R 175/2008-1;

— Allow the opposition and reject the trade mark application No 4 584 587 for the figurative mark ‘YourCare’; and

— Order the defendant 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 ‘YourCare’, for goods in classes 3, 8 and 21

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

Mark or sign cited: German trade mark registration No 2 913 574 of the word mark ‘Young Care’ for goods in classes 3 and 5; German trade mark registration No 30 416 018 of the figurative mark ‘bebe young care’ for goods and services in classes 3, 21 and 44; German trade mark registration No 30 414 452 of the word mark ‘Young Care’ for goods in class 21.

Decision of the Opposition Division: Allowed the opposition in its entirety and rejected the Community trade mark application

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was no likelihood of confusion between the trade marks concerned; Infringement of Article 74(1) of Council Regulation 40/94 as the Board of Appeal failed to take into account factual evidence provided by the applicant.