ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 260/49

Action brought on 17 July 2013 — ultra air GmbH v OHIM — Donaldson Filtration Deutschland (ultra.air ultrafilter)

(Case T-377/13)

2013/C 260/87

Language in which the application was lodged: German

Parties

Applicant: ultra air GmbH (Hilden, Germany) (represented by: C. König, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal: Donaldson Filtration Deutschland GmbH

Form of order sought

The Applicant claims that the Court should:

— Set aside the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 May 2013 in Case R 1100/2011-4;

— Order OHIM, and Donaldson Filtration Deutschland GmbH should it participate in the proceedings, to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘ultra.air ultrafilter’ for goods and services in Classes 7, 9, 11, 37 and 42 — Community trade mark No 7 480 585

Proprietor of the Community trade mark: Applicant

Applicant for the declaration of invalidity of the Community trade mark: Donaldson Filtration Deutschland GmbH

Grounds for the application for a declaration of invalidity: Absolute ground of invalidity under Article 52(1)(a) of Regulation No 207/2009

Decision of the Cancellation Division: Application for declaration of invalidity dismissed

Decision of the Board of Appeal: Appeal allowed; Community trade mark declared invalid

Pleas in law:

Infringement of Article 7(1)(c) of Regulation No 207/2009;

Infringement of Article 7(1)(b) of Regulation No 207/2009;

Infringement of Article 75(2) of Regulation No 207/2009;
1.

By its first plea in law, the applicant submits that the ECHA unlawfully exceeded its powers, which are limited to ascertaining whether the applicant undertaking is entitled to the reduced fee payable by SMEs, by putting itself in the place of the Commission in adopting the decision concerning that entitlement and by applying in an arbitrary manner, in order to determine whether the applicant had the legal status of an SME, substantive criteria other than those laid down by the Commission in Regulation No 340/2008. (1) The power to adopt decisions concerning entitlement to the reduced tariff for SMEs involves an assessment as to whether the criteria of Recommendation 2003/361/EC, on Community finance for SMEs, are applicable to the size of the enterprise registered; that assessment is not a matter for the ECHA Secretariat but for the Commission alone, since neither the REACH Regulation nor the Commission’s implementing regulations have provided an ad hoc definition. In addition, as regards ascertaining the legal status of an SME, Commission Regulation (EC) 340/2008 expressly restricts the application of the sub-criteria of Recommendation 2003/361/EC, relating to holdings in other companies, to enterprises not established in the European Union. It follows, conversely, that those criteria may not be applied in evaluating the size of an enterprise established in the European Union in order to check whether the latter is entitled to the reduced fee.
EN Official Journal of the European Union C 274/18

Action brought on 17 July 2013 — Gemeente Eindhoven v Commission

(Case T-370/13)

2013/C 274/31

Language of the case: Dutch

Parties

Applicant: Gemeente Eindhoven (Eindhoven, Netherlands) (represented by: G. van der Wal, M. van Heezik and L. Parret, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested decision in so far as it concerns the transaction between the applicant and PSV; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant has brought an action under the fourth paragraph of Article 263 TFEU against the Commission’s decision of 6 March 2013 (SA.33584 (2013/C) (ex 2011/NN) — State aid to certain professional Dutch football clubs in 2008 — 2011) (OJ 2013 C 116, p. 19).

In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging breach of the principle of good administration, including the principle of due care. The applicant submits that information was supplied to the Commission on 26 and 28 July 2011, following which no further questions were put to the Netherlands authorities. On 6 March 2013 the Commission decided to initiate the formal investigation procedure. Owing to the considerable period of time that had elapsed (19 months), and the failure to undertake any further (substantive) consultation, the Commission, as a result of its own acts and omissions, did not have a full picture of the relevant facts at the time when the formal procedure was initiated.

2. Second plea in law, alleging breach of the principles of protection of legitimate expectations and of legal certainty By this plea the applicant submits that it was entitled to proceed on the assumption that the transaction would be assessed within the framework of the Communication on State aid elements in sales of land and buildings by public authorities, (1) as had previously been the case when the Commission had assessed similar transactions.

3. Third plea in law, alleging a manifest error of assessment The Commission made a manifest error of assessment in that it initiated the formal investigation procedure in the absence of reasonable doubts within the meaning of Article 4(4) of Regulation No 659/1999 (2) and the case-law. In taking a view on the existence of State aid within the meaning of Article 107(1) TFEU, despite further questions arising, the Commission is also failing to have regard to the provisional nature of a decision under Article 6 of Regulation No 659/1999.

4. Fourth plea in law, alleging an insufficient and/or erroneous statement of reasons Further to the third plea in law concerning the existence of a manifest error of assessment, the applicant claims that the contested decision does not satisfy the Commission’s obligation to state reasons, in accordance with Article 296 TFEU.

(1) Commission Communication on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3).

(2) 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 83, p. 1).
EN Official Journal of the European Union C 304/20

Action brought on 8 August 2013 — Tsujimoto v OHIM — Kenzo (KENZO ESTATE)

(Case T-414/13)

2013/C 304/34

Language in which the application was lodged: English

Parties

Applicant: Kenzo Tsujimoto (Osaka, Japan) (represented by: A. Wenninger-Lenz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Kenzo (Paris, France)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks and Designs) of 22 May 2013 given in Case R 333/2012-2;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark KENZO ESTATE for goods in Class 33 — International Registration No 953373

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 in opposition: Community trade mark registration No 720 706 of the word trade mark KENZO for goods in Classes 3, 18 and 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

Pleas in law: Infringement of Article 8(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (1).

(1) OJ L 78, p. 1
—

set aside the judgment of the Civil Service Tribunal in Case F-21/12 in so far as it annuls the CESE's decision of 9 June 2011 concerning the repayment of the expatriation allowance paid to Mr Achab after 1 July 2010 and orders the CESE to bear its own costs and half of the costs incurred by the applicant at first instance;
Level of direct payments in the Republic of Lithuania not corresponding to the level agreed in the Act of Accession and to the level of direct payments of the old Member States

The Republic of Lithuania’s actual level of direct payments does not correspond to the level agreed in the Act of Accession of 23 September 2003. In breach of the Act of Accession, Regulation No 583/2004 of 22 March 2004 adopted amendments to Regulation No 1782/2003, laying down national agricultural support ceilings for the new Member States (Article 71c of and Annex VIIIa to Regulation No 1782/2003).

In 2012 the direct payment percentage in the Republic of Lithuania did not equalise with the direct payment level of the old Member States of the European Union: in the old Member States modulation is applied only to sums exceeding EUR 5 000 and that means that not all direct payments allocated to farmers of the old Member States are modulated (reduced) by 10 %, but only those which exceed EUR 5 000. Therefore, it is unfounded and unlawful to state that in 2012 the level of direct payments in the old Member States is 90 % (‘100% minus 10 % modulation’). The level of direct payments in the old Member States is greater than 90 % because a proportion of the sums — not exceeding EUR 5 000 — are not modulated.
EN Official Journal of the European Union C 325/39

Action brought on 20 August 2013 — Makhlouf v Council

(Case T-442/13)

2013/C 325/65

Language of the case: French

Parties

Applicant: Hafez Makhlouf (Damascus, Syria) (represented by: C. Rygaert and G. Karouni, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

— annul Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria;

— order the Council of the European Union to pay the costs pursuant to Articles 87 and 91 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law which are in essence identical or similar to those relied on in Case T-359/11 Makhlouf v Council. (1)

(1) OJ 2011 C 282, p.25.
2.

Second plea in law, alleging infringement of the protection of workers in the context of a mass redundancy, in so far as each of the workers made redundant must have the law in force in her/his Member State of origin applied to her/him, resulting in significant differences in the rules applied and the protection granted to each worker.
—

Annul: — Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria in so far as it concerns Ms Bouchra (known as Bushra) Al Assad; — Council Implementing Regulation (EU) No 363/2013 of 22 April 2013 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, corrected on 9 May 2013 in so far as it concerns Ms Bouchra (known as Bushra) Al Assad;
EN Official Journal of the European Union C 344/65

Action brought on 25 September 2013 — Leder & Schuh International v OHIM — Epple (VALDASAAR)

(Case T-519/13)

2013/C 344/119

Language in which the application was lodged: German

Parties

Applicant: Leder & Schuh International AG (Salzburg, Austria) (represented by: S. Korn, lawyer)

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

Other party to the proceedings before the Board of Appeal: Valerie Epple (Bronnen, Germany)

Form of order sought

The applicant claims that the Court should:

— annul the contested decision of the First Board of Appeal, reject the opposition and

— order the defendant to pay the costs of the appeal proceedings and the proceedings before the General Court of the European Union.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘VALDASAAR’ for goods and services in Classes 18, 25 and 35 — Community trade mark application No 9 591 249

Proprietor of the mark or sign cited in the opposition proceedings: Valerie Epple

Mark or sign cited in opposition: the word mark ‘Val d’Azur’ for goods in Class 25

Decision of the Opposition Division: the opposition was upheld in part

Decision of the Board of Appeal: the appeal was dismissed in part

Pleas in law: Infringement of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue
EN Official Journal of the European Union C 352/17

Action brought on 20 September 2013 — Urb Rulmenti Suceava v OHIM — Adiguzel (URB)

(Case T-506/13)

2013/C 352/32

Language in which the application was lodged: English

Parties

Applicant: Urb Rulmenti Suceava SA (Suceava, Romania) (represented by: I. Burdusel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Harun Adiguzel (Diosd, Hungary)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 July 2013 given in Case R 1309/2012-4;

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

— Order the other party to the proceedings before the Board of Appeal to pay the costs incurred during the proceedings before the OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘URB’ for goods in Classes 6 and 7 — Community trade mark registration No 7 380 009

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

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

Grounds for the application for a declaration of invalidity: Absolute grounds for invalidity under Article 52(1)(b) CTMR and relative grounds for invalidity under Article 8(1)(b) in conjunction with Article 53(1)(a) CTMR

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 52(1)(b), 53(1)(a) and 72 CTMR.
EN Official Journal of the European Union C 344/65

Action brought on 25 September 2013 — Philip Morris Benelux/Commission

(Case T-520/13)

2013/C 344/120

Language of the case: English

Parties

Applicant: Philip Morris Benelux (Antwerpen, Belgium) (represented by: K. Nordlander, lawyer, and P. Harrison, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Declare the application admissible;

— Annul the decision taken by the Secretary-General of the European Commission, dated 15 July 2013 (the ‘contested measure’), in which the Commission refused the applicant’s request for access to drafts of the Impact Assessment Report accompanying the Commission’s proposal for a revised Tobacco Products Directive; and

— Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1. First plea in law, alleging that, by adopting the contested measure, the Commission committed a manifest error of assessment and breached Article 4(3) of the Regulation (EC) No 1049/2001 (1), by asserting and concluding that both the first and second subparagraphs of Article 4(3) of the such regulation (which are mutually exclusive) could apply simultaneously to the same set of facts at issue.

2. Second plea in law, alleging that, by adopting the contested measure, the Commission breached Article 4(3)(1) of Regulation (EC) No 1049/2001 by concluding that the narrow and limited exception set out in that subparagraph justified its refusal to grant disclosure of any of the requested documents.

3. Third plea in law, alleging that, by adopting the contested measure, the Commission breached Article 4(3)(2) of Regulation (EC) No 1049/2001, because the requested documents do not have the status of opinions and thus are not covered by the exception in Article 4(3)(2) of the regulation in question. Further, (i) disclosure of the requested documents would not undermine the Commission’s decision-making process; and (ii) there is an overriding public interest in disclosure of the requested documents.

(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 367/36

Action brought on 15 October 2013 — Radecki v OHIM — Vamed (AKTIVAMED)

(Case T-551/13)

2013/C 367/64

Language in which the application was lodged: German

Parties

Applicant: Michael Radecki (Cologne, Germany) (represented by: C. Menebröcker and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Vamed AG (Vienna, Austria)

Form of order sought

— Annul the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 July 2013 (Case R 365/2012-1);

— order OHIM to bear its own costs and to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Michael Radecki

Community trade mark concerned: Word mark ‘AKTIVAMED’ for goods and services in Classes 5, 11 and 44 — Community trade mark No 8 958 886

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

Mark or sign cited in opposition: Austrian figurative marks and international registration ‘VAMED’ for goods and services in Classes 8, 9, 10, 11, 12, 16, 20, 21, 28, 35, 36, 37, 39, 41, 42, 43, 44 and 45

Decision of the Opposition Division: Opposition dismissed

Decision of the Board of Appeal: Decision of the Opposition Division annulled

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
First plea in law, relating to infringement of Article 39 TFEU, read in conjunction with the first subparagraph of Article 40(2) TFEU, and of the principle of non-discrimination

In adopting Article 1(4) of the contested decision the Commission committed an infringement of Article 39 TFEU, read in conjunction with the first subparagraph of Article 40(2) TFEU, because it did not keep to the objectives of the common agricultural policy that are specified in the FEU Treaty (in particular Article 39(1)(b) TFEU) and to the criteria of the common agricultural policy, and it also infringed the principle of non-discrimination.
EN Official Journal of the European Union C 367/38

Action brought on 24 October 2013 — Belgium v Commission

(Case T-563/13)

2013/C 367/68

Language of the case: Dutch

Parties

Applicant: Kingdom of Belgium (represented by: J.-C. Halleux and M. Jacobs, acting as Agents, assisted by F. Tuytschaever and M. Varga, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Declare the present application for annulment admissible and well-founded, and accordingly annul the contested decision in so far as it concerns the expenditure incurred by the Kingdom of Belgium amounting to € 4 108 237,42, or in any event to limit the amount to be reduced from the financing to € 1 268 963,04;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Implementing Decision 2013/433/EU of 13 August 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it concerns the expenditure incurred by the Kingdom of Belgium.

In support of the action, the applicant relies on three pleas in law.

1. First plea in law, alleging breach of the duty to state reasons and the principle of legal certainty, due to the contested implementing decision not sufficiently allowing the applicant to know the breach of which it is accused.

2. Second plea in law, alleging breach of Articles 122, 125b(1), and 125d of Regulation (EC) No 1234/2007 (2) and of Articles 25, 28(1), 29 and 33 of Regulation (EC) No 1580/2007, (3) due to the Commission determining that Greenbow cvba was wrongfully recognised as a producer organisation.

3. Third plea in law, alleging breach of the principle of proportionality due to the Commission not having limited the financial correction to the expenditure relating to the Greenbow members that could not be autonomously recognised as producer organisations.

(1) OJ 2013 L 219, p. 49.

(2) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

(3) Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350, p. 1).
EN Official Journal of the European Union C 24/33

Action brought on 22 November 2013 — BlackRock v OHIM (SO WHAT DO I DO WITH MY MONEY)

(Case T-609/13)

2014/C 24/61

Language of the case: English

Parties

Applicant: BlackRock, Inc. (New York, United States) (represented by: S. Malynicz, Barrister, K. Gilbert and M. Blair, Solicitors)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 September 2013 given in Case R 572/2013-4;

— Order the defendant to pay the costs of proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SO WHAT DO I DO WITH MY MONEY’ for services in Classes 35 and 36 — Community trade mark application No 11 144 748

Decision of the Examiner: Rejected the CTM application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) CTMR.
EN Official Journal of the European Union C 24/25

Action brought on 28 October 2013 — Bimbo v OHIM — Cafe' do Brasil (Caffè KIMBO Espresso Napoletano)

(Case T-569/13)

2014/C 24/44

Language in which the application was lodged: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: N. Fernández Fernández-Pacheco, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cafe' do Brasil SpA (Melito di Napoli, Italy)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 August 2013 given in Case R 1561/2012-4;

— Order the intervener to pay the costs of proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark in red, gold, white and black containing the verbal elements ‘Caffè KIMBO Espresso Napoletano’ for a range of goods and services in Classes 30, 32 and 43 — Community trade mark application No 4 037 933

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

Mark or sign cited in opposition: Spanish trade mark No 291 655 for the word ‘BIMBO’ for goods in Class 30 and earlier well-known mark in Spain ‘BIMBO’ for goods in Class 30

Decision of the Opposition Division: Rejected the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) and 8(5) CTMR.