ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 209/43

Action brought on 21 May 2010 — Merlin and Others v OHIM — Dusyma (Games)

(Case T-231/10)

()

2010/C 209/66

Language in which the application was lodged: German

Parties

Applicants: Merlin Handelsgesellschaft mbH (Forchtenberg, Germany), Rolf Krämer (Forchtenberg), BLS Basteln, Lernen, Spielen GmbH (Forchtenberg), Andreas Hohl (Künzelsau, Germany), represented by: R. Kramer, 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: Dusyma Kindergartenbedarf GmbH (Schorndorf, Germany)

Form of order sought

— annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2010 in Case R 879/2009-3 and declare Community design No 526 801-0011 invalid;

— in the alternative, annul the decision of the Third Board of Appeal and refer the case back to the Board of Appeal;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 526 801-0011 for the products ‘Games (including educational games)’.

Proprietor of the Community trade mark: Dusyma Kindergartenbedarf GmbH.

Applicant for the declaration of invalidity: the Applicants.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

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

Pleas in law: Infringement of Article 3 of Council Regulation (EC) No 6/2002 (1) on Community designs, because the Board of Appeal misinterpreted the provisions of that article concerning definitions and did not take into consideration the fact that a Community design can also consist in the appearance of a part of a product.

(1) Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).
EN Official Journal of the European Union C 234/42

Action brought on 14 June 2010 — LIS v Commission

(Case T-269/10)

()

2010/C 234/77

Language of the case: German

Parties

Applicant: LIS GmbH Licht Impex Service (Mettmann, Germany) (represented by: K.-P. Langenkamp, lawyer)

Defendant: European Commission

Form of order sought

— declare the Commission decision of 12 April 2010 to be void pursuant to Article 264 TFEU;

— order the Commission to pay the costs necessarily incurred pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2010) 2198 final of 12 April 2010 by which the Commission rejected the applicant’s requests for reimbursement of anti-dumping duties paid in respect of the importation of integrated electronic compact fluorescent lamps originating in the People’s Republic of China.

In support of its claim, the applicant submits that, in applying Article 11(8) of Regulation (EC) No 384/96, (1) the Commission failed to have regard for the purpose and objective of that rule and did not apply principles of logical reasoning.

In this regard, it is submitted, inter alia, that there was never any case of dumping in the specific case, as the production price was below the export price paid and the same product was subsequently offered by a German company at a price which was lower than the original Chinese export price.

The applicant submits, further, that the Commission disregarded the fact that the products in issue are not ordinary energy-saving light bulbs within the meaning of the measure.

The applicant also contends that the classification of the product by the German customs authorities was not, contrary to the Commission’s view, open to criticism, as there is no other classification number under which the product could have been entered.

Moreover, the Commission paid no regard to the fact that there was at no time any danger of damage within the Community in the specific case, as the light products marketed by the applicant were marketed throughout Europe by the applicant alone and there was, for that reason, no other manufacturer in need of protection.

In conclusion, it is submitted that it cannot be relevant, for purposes of entitlement to reimbursement, that the specific dumping margin has not disappeared; rather, what is decisive is that there never was any such dumping margin.

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).
EN Official Journal of the European Union C 221/53

Action brought on 16 June 2010 — Spain v Commission

(Case T-265/10)

()

2010/C 221/85

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: Mrs Nuria Díaz Abad, lawyer)

Defendant: European Commission

Form of order sought

— Annul the decision of the European Commission of 15 April 2010 declaring the suspension of the interim payment application submitted by Spain on 11 December 2009 on the grounds stated in Section I of the legal reasoning set out in the originating application;

— Uphold the claim that the European Commission should pay interest on account of the delay in the actual payment of the interim sums applied for and improperly suspended;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the Commission’s decision to interrupt the payment deadline in respect of the interim payment application submitted by Spain on 11 December 2009. That interim payment application, for a total amount of EUR 27 754 408,38,relates to the Operational Programmes for Community Assistance of the European Social Fund in the framework of the Objectives of Convergence for the Autonomous Community of Galicia (CCI 2007ES051PO004).

The pleas in law and main arguments are the same as those already raised in Case T-263/10 Spain v Commission.
EN Official Journal of the European Union C 260/24

Action brought on 2 August 2010 — Fürstlich Castell’sches Domänenamt/OHMI — Castel Frères (CASTEL)

(Case T-320/10)

()

2010/C 260/33

Language in which the application was lodged: English

Parties

Applicant: Fürstlich Castell’sches Domänenamt, Albrecht Fürst zu Castell-Castell (Castell, Germany) (represented by: R. Kunze, Solicitor, G. Würtenberger and T. Wittmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Castel Frères SA (Blanquefort, France)

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 4 May 2010 in case R 962/2009-2;

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘CASTEL’ for goods in class 33 — Community trade mark registration No 2678167

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

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 7 of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7 of Council Regulation No 207/2009, as the Board of Appeal: (i) on the one hand correctly acknowledged that ‘Castell’ was a recognised indication of origin in relation to wine, yet, on the other erred in considering that the contested trade mark ‘CASTEL’ was conspicuously different from ‘Castell’ and hence concluded that the contested trade mark could be registered, (ii) by saying that ‘CASTEL’ was a word commonly used for ‘castle’ in the wine industry, failed to draw the conclusion that ‘CASTEL’ could not be registered; Infringement of Articles 63, 64, 75 and 76 of Council Regulation No 207/2009, as the Board of Appeal did not properly take into account the facts and arguments submitted; Infringement of Article 65 of Council Regulation No 207/2009, as the Board of Appeal acted ultra vires in justifying its decision by a ‘peaceful coexistence’, although this doctrine is not apparent for consideration for the registration of a trade mark.
EN Official Journal of the European Union C 234/48

Action brought on 25 June 2010 — Milux v OHMI (BMICONTROL)

(Case T-283/10)

()

2010/C 234/85

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, 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 (Trade Marks and Designs) of 17 June 2010 in case R 1435/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BMICONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.
Action brought on 8 September 2010 — Spain v Commission

(Case T-384/10)

()

(2010/C 288/115)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2010) 4147 of 30 June 2010, reducing the assistance granted from the Cohesion Fund to the following (groups of) projects: ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133), ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.16.C.PE.066) and ‘Water supply to multi-municipal systems in the provinces of Granada and Málaga’ (2002.ES.16.C.PE.061), and

— order the Commission to pay the costs.

Pleas in law and main arguments

In the context of the Cohesion Fund, the Commission granted assistance to various projects, in relation to ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133) [Decision C(2001) 4113 of 18 December 2001], ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.16.C.PE.066) [Decision C(2000) 4316 of 29 December 2000], and ‘Water supply to multi-municipal systems in the provinces of Granada and Málaga’ (2002.ES.16.C.PE.061) [Decision C(2002) 4689 of 24 December 2002].

The different projects were to be carried out by means of various contracts for work.

The contested decision reduces the assistance initially granted by the Cohesion Fund, by means of the corresponding financial corrections.

In support of its claims, the applicant relies on the following pleas in law:

1. Breach of Article H.2 of Regulation No 1994/1164 EC, (1) in so far as: — a financial correction is being applied for breaches of EU public procurement directives to contracts which are not, however, subject to those directives; — a financial correction is being applied for a breach of EU legislation which has not, however, taken place, since the subject-matter of the contracts has not been unlawfully split up.

2. Alternatively, in relation to the all of the foregoing, breach of the regulation referred to, in so far as Directive 93/37/EEC on public works contracts has not been infringed in relation to experience or average price.

3. In the further alternative, the applicant alleges that the principle of proportionality has been breached in a number of respects.

(1) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).
EN Official Journal of the European Union C 260/17

Action brought on 7 July 2010 — Arrieta D. Gross v OHIM — Toro Araneda (BIODANZA)

(Case T-298/10)

()

2010/C 260/24

Language in which the application was lodged: English

Parties

Applicant: Christina Arrieta D. Gross (Hamburg, Germany) (represented by: J.-P. Ewert, lawyer)

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

Other party to the proceedings before the Board of Appeal: Rolando Mario Toro Araneda (Santiago de Chile, Chile)

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 13 April 2010 in case R 1149/2009-2;

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

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

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 ‘BIODANZA’, for goods and services in classes 16, 41 and 44

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

Mark or sign cited: German trade mark registration No 2905152 of the word mark ‘BIODANZA’, for goods and services in classes 16 and 41; Danish trade mark registration No VA 199500708 of the word mark ‘BIODANZA’, for goods and services in classes 16, 41 and 44

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services and allowed the application to proceed for the remaining goods of the application

Decision of the Board of Appeal: Upheld the appeal, annulled the contested decision and rejected the opposition entirely

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 42(2) and 42(5) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly found that the applicant did not prove that the earlier trade mark has been put to genuine use in a Member State in which the earlier national trade mark is protected for use in the Community.

By its second plea, the applicant considers that the contested decision infringes Rule 22(2) of Commission Regulation (EC) No 2868/95, as the Board of Appeal failed to invite the applicant to provide the proof required as it should have specified.
Official Journal of the European Union

Action brought on 3 August 2010 — Chabou v OHIM — Chalou Kleiderfabrik (CHABOU)

(Case T-323/10)

()

(2010/C 288/81)

Language in which the application was lodged: German

Parties

Applicant: Chickmouza Chabou (Rheine, Germany) (represented by: K.-J. Triebold, 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: Chalou Kleiderfabrik GmbH (Herschweiler-Pettersheim, 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 20 May 2010 in Case R 1165/2009-1 or amend that decision and reject the opposition

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark CHABOU for goods in class 25.

Proprietor of the mark or sign cited in the opposition proceedings: Chalou Kleiderfabrik GmbH.

Mark or sign cited in opposition: Word mark Chalou, registered as a national and international trade mark for goods in class 25.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: The contested decision fails to take account of the special circumstances of the present case and, instead, applies the established principles concerning the issues of the similarity of signs and of protected goods and services in the light of the likelihood of confusion in a purely formulaic and mechanical fashion, without sufficient regard to the specific aspects of the case and the requisite global assessment of all the circumstances.
Action brought on 20 August 2010 — UPS Europe and United Parcel Service Deutschland v Commission

(Case T-344/10)

()

(2010/C 288/94)

Language of the case: English

Parties

Applicants: UPS Europe NV/SA (Brussels, Belgium) and United Parcel Service Deutschland Inc. & Co. OHG (Neuss, Germany), (represented by: T.R. Ottervanger and E.V.A. Henny, lawyers)

Defendant: European Commission

Form of order sought

— Declare, in accordance with Article 265 TFEU, that the Commission has failed to act by not having defined its position in case C 36/07 (ex NN 25/07) — Germany/Deutsche Post; and

— Order the defendant to pay the costs incurred by the applicants in the proceedings.

Pleas in law and main arguments

By means of the present application, the applicants seek, pursuant to Article 265 TFEU, a declaration that the Commission has failed to act by not having defined its position in case C 36/07 (ex NN 25/07) — Germany/Deutsche Post ((OJ 2007 C 245, p. 21).

In support of their action, the applicants submit that since the Commission has not defined its position in the above mentioned investigation procedure within a reasonable time period, it has breached Articles 7 and 13 of Regulation (EC) No 659/1999 (1).

In addition, by failing to define its position within a reasonable time period, the Commission has also breached the principles of good administration and legal certainty. According to the applicants, the principle of sound administration should have been respected since it is one of the general principles common to the constitutional traditions of the Member States. Moreover, this principle is clearly reflected in Article 41(1) of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).

(1) 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 301/62

Action brought on 17 September 2010 — Global Steel Wire v Commission

(Case T-429/10)

()

2010/C 301/99

Language of the case: Spanish

Parties

Applicant: Global Steel Wire, SA (Cerdanyola del Vallés, Spain) (represented by: F. González Díaz and A. Tresandí Blanco, lawyers)

Defendant: European Commission

Form of order sought

— Principally, annul, under Article 263 of the Treaty on the Functioning of the European Union (TFEU), Commission Decision C(2010) 4387 (final) of 30 June 2010 in Case COMP 38344 — Prestressing steel;

— in the alternative, annul or reduce, under Article 261 TFEU, the amount of the fine imposed by that decision;

— in any event, order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision in these proceedings is the same as in Case T-426/10 (Moreda-Rivière Trefilerías v Commission).

The pleas in law and main arguments are similar to those advanced in that case.

In particular, the applicant submits that the European Commission failed to meet the standard of proof required by Community case-law when it held GSW liable for the conduct of its subsidiaries. The European Commission did not prove that GSW was able to exercise a decisive influence over the conduct of the companies in which it held shares.
Action brought on 25 August 2010 — Ecologistas en Acción — CODA v Commission

(Case T-359/10)

()

(2010/C 288/105)

Language of the case: Spanish

Parties

Applicant: Ecologistas en Acción — CODA (represented by: J. Ramos Segarra, lawyer)

Defendant: European Commission

Form of order sought

— annul the decision of 30 June 2010 of the Secretariat General of the European Commission refusing access to the documents requested by the applicant in the proceedings GESTDEM 2010/957 and declare that the applicant is entitled to receive the information requested: — letter of 7 January 2010 from the Servicio de Asesoramiento Urbanístico del Ajuntament de Valencia; — communication of 17 January 2010 by the Spanish authorities regarding EU-PILOT 724/09/2ENVI; — letter of 21 January 2010 from the Generalität Valenciana — Directorate General for Environmental Management;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant association challenges the decision refusing its request for access to certain documents submitted by Spain in the investigation concerning EU-PILOT-ENVI 72409, which is intended to implement the Special Protection and Internal Reform Plan (PEPRI) for the district of Cabanyal in the City of Valencia, approved by the Ayuntamiento de Valencia and the Generalidad de Valencia.

In support of its forms of order the applicant claims that the contested decision infringes Articles 3, 4 and 6 of Regulation (EC) No 1367/2006. (1)

The applicant states in that regard that, contrary to the Commission’s submissions, there are no domestic legal proceedings clearly connected to the procedure initiated by the Commission. The legal proceedings to which the defendant refers concern non-compliance with domestic laws which do not in any way regulate the environment or refer to the environmental impact assessment.

Further, the applicant takes the view that, in any event, the disclosure of the information requested cannot prejudice the environmental protection to which that information refers.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).