ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 328/36

Action brought on 23 September 2010 — Apple v OHMI — Iphone Media (IPH IPHONE)

(Case T-448/10)

()

2010/C 328/63

Language in which the application was lodged: English

Parties

Applicant: Apple, Inc. (Cupertino, USA) (represented by: M. Engelman, barrister and J. Olsen, solicitor)

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

Other party to the proceedings before the Board of Appeal: Iphone Media, SA (Seville, Spain)

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 21 July 2010 in case R 1084/2009-4;

— Uphold the applicant’s opposition;

— In the alternative, then applicant requests that its opposition be upheld in respect of such goods and services for which it is found that a likelihood of confusion exists and/or for such goods and services where it is determined there exists a risk of the Application Mark taking unfair advantage of, or being detrimental to, the distinctive character or repute of the applicant’s mark;

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

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 ‘IPH IPHONE’, for goods and services in classes 16, 35, 38, 41 and 42 — Community trade mark application No 5562822

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

Mark or sign cited: Community trade mark registration No 2901007 of the word mark ‘IPHONE’, for goods and services in classes 9, 38 and 42

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 8(1)(b) and 8(5) of Council Regulation (EC) No 207/2009, as the Board of Appeal misapplied the provisions of these articles to the contested trade mark.
EN Official Journal of the European Union C 317/43

Action brought on 22 September 2010 — Gap SA granen & producten v Commission

(Case T-437/10)

()

2010/C 317/76

Language of the case: Dutch

Parties

Applicant: Gap SA granen & producten NV (Zoersel, Belgium) (represented by: C. Ronse and A. Hansebout, lawyers)

Defendant: European Union, represented by the European Commission

Form of order sought

The applicant requests the General Court to declare that the European Union has incurred non-contractual liability and order it to pay compensation in respect of the harm which the applicant has suffered, more specifically, to pay it the sum of EUR 295 690,43, increased by Belgian statutory interest from the respective dates on which the applicant paid the disputed import duties, and also to order the European Union to pay a provisional sum of EUR 30 000, plus Belgian statutory interest, in respect of the further harm which the applicant has suffered.

Pleas in law and main arguments

The applicant is seeking compensation for the harm which it claims to have suffered by reason of the fact that the European Commission, when setting import duties on durum wheat, specifically in the context of Commission Regulation (EC) No 919/2009 of 1 October 2009 amending Regulation (EC) No 915/2009 fixing the import duties in the cereals sector applicable from 1 October 2009 (OJ 2009 L 259, p. 5), acted unlawfully and applied incorrect market prices and freight costs.

In support of its claim for compensation, the applicant submits that the Commission breached Article 4 of Regulation No 1249/96 (1) and the general duty of care by taking into account incorrect prices and freight costs for the purpose of imposing and calculating the import duties.

In the applicant’s view, the breach of Article 4 of Regulation No 1249/96 is sufficiently serious because the Commission did not have any discretionary power when it adopted Regulation No 919/2009. Moreover, it argues, the Commission’s breach of the duty of care is in itself a sufficiently serious breach.

The applicant concludes by submitting that the harm which it suffered was attributable to an improperly imposed and wrongly calculated duty, the precise amount of which the applicant proves. In addition, the applicant claims also to have suffered harm by reason of the time which it has had to devote to the present case and the lawyers’ fees which it has been obliged to incur.

(1) Commission Regulation (EC) No 1249/96 of 28 June 1996 on rules of application (cereal sector import duties) for Council Regulation (EEC) No 1766/92 (OJ 1996 L 161, p. 125).
EN Official Journal of the European Union C 346/43

Action brought on 17 September 2010 — Dow AgroSciences and Dintec Agroquímica — Produtos Químicos v Commission

(Case T-446/10)

()

2010/C 346/88

Language of the case: English

Parties

Applicants: Dow AgroSciences Ltd (Hitchin, United Kingdom) and Dintec Agroquímica — Produtos Químicos, Lda (Funchal, Portugal) (represented by: K. Van Maldegem and C. Mereu, lawyers)

Defendant: European Commission

Form of order sought

— declare the application admissible and well-founded;

— annul Decision 2010/355/EU;

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

— take such other or further measures as justice may require.

Pleas in law and main arguments

By means of this application the applicants seek the annulment of the Commission Decision 2010/355/EU of 25 June 2010 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC (1).

The applicants put forward two pleas in law in support of their claims.

First, they argue that the contested decision is unlawful since it is based on, and exists only because, of an unlawful decision. That other decision (2), 2007/629/EC (3), is the original non-inclusion decision for trifluralin which resulted from the Article 8(2) of Directive 91/414 (4) review of the substance. Had decision 2007/629/EC not been adopted unlawfully, the contested decision would not exist.

Second, the applicants submit that the contested act is itself unlawful for self-standing reasons. They contend that the Commission has erred as a matter of law in justifying the contested act on the grounds of the alleged concerns regarding:

— potential long-range transport; in this regard, the applicants claim that the Commission failed to take into account data (lack of scientific justification) and violated the principle of sound administration and right of defence. Moreover, the approach adopted by the Commission with regard to long-range transport is, in the applicants’ view, discriminatory and disproportionate;

— fish toxicity; in this regard, the applicants claim that the scientific justification does not support the finding. Moreover, in their opinion, the contested act is disproportionate in the way it approaches the alleged chronic toxic concern.

(1) Notified under document C(2010) 4199, OJ 2010 L 160, p. 30

(2) Contested by the applicants in the framework of Case T-475/07, Dow Agrociences and Others v Commission, OJ 2008 C 51, p. 54

(3) Commission Decision of 20 September 2007 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (notified under document number C(2007) 4282), OJ 2007 L 255, p. 42

(4) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, OJ 1991 L 230, p. 1
repeal Commission Decision C(2010) 4891 final of 20 July 2010, concerning the parafiscal charge to promote wine applied by Portugal — State aid No C-43/2004 (ex NN 38/2003);

in the alternative, failing that,
EN Official Journal of the European Union C 13/29

Action brought on 1 November 2010 — Hamberger Industriewerke v OHIM (Atrium)

(Case T-513/10)

()

2011/C 13/57

Language in which the application was lodged: German

Parties

Applicant: Hamberger Industriewerke GmbH (Stephanskirchen, Germany) (represented by T. Schmidpeter, 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 26 August 2010 in Case R 291/2010-4;

— Order the defendant to pay the costs, including the costs incurred in the course of the appeal procedure.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Atrium’ for goods in Classes 19 and 27.

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1), as the Community trade mark concerned is distinctive and not merely descriptive.

(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 30/56

Action brought on 3 December 2010 — H. Eich v OHIM — Arav (H. Eich)

(Case T-557/10)

()

2011/C 30/98

Language in which the application was lodged: Italian

Parties

Applicant: H. Eich Srl (Signa, Italy) (represented by: D. Mainini, T. Rubin, A. Masetti Zannini de Concina, M. Bucarelli, G. Petrocchi, B. Passaretti, 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: Arav Holding Srl (Palma Campania, Italy)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of 9 September 2010;

— Declare valid the mark H. EICH referred to in registration application No 6 256 242;

— Order OHIM to pay the costs of all proceedings, including before the two OHIM instances.

Pleas in law and main arguments

Applicant for a Community trade mark: H. Eich

Community trade mark concerned: Word mark ‘H. Eich’ (registration application No 6 256 242), for goods in Classes 18 and 25;

Proprietor of the mark or sign cited in the opposition proceedings: Arav Holding Srl

Mark or sign cited in opposition: Figurative mark containing the word element ‘H-Silvian Heach’ (Italian mark No 976 125, and mark No 880 562, pursuant to the Protocol to the Madrid Agreement, for Benelux, the Czech Republic, Germany, Greece, Spain, France, Hungary, Austria, Poland, Portugal, Romania, the United Kingdom), for goods in Classes 18 and 25.

Decision of the Opposition Division: Rejected the opposition.

Decision of the Board of Appeal: Annulled the contested decision and rejected the application for registration.

Pleas in law: Incorrect application and interpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark (no likelihood of confusion).
EN Official Journal of the European Union C 13/32

Action brought on 8 November 2010 — Seikoh Giken v OHIM — Seiko (SG SEIKOH GIKEN)

(Case T-519/10)

()

2011/C 13/61

Language in which the application was lodged: English

Parties

Applicant: Kabushiki Kaisha Seikoh Giken (Matsudo-shi, Japan) (represented by: G. Marín Raigal, P. López Ronda and G. Macias Bonilla, lawyers)

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

Other party to the proceedings before the Board of Appeal: Seiko Kabushiki Kaisha (Chuo-ku, Japan)

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 12 August 2010 in case R 1553/2009-1;

— Reject in its entirety the opposition to registration of the mark applied for in respect of the goods in class 25;

— Order the defendant to grant registration of the mark applied for;

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

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the current proceedings, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘SG SEIKOH GIKEN’, for goods in classes 3, 7 and 9 — Community trade mark application No 908461

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 No 2390953 of the word mark ‘SEIKO’, for goods and services in classes 1– 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision of the First Board of Appeal infringes the provisions of Council Regulation (EC) No 207/2009, hereinafter CTMR, by a misleading, incorrect interpretation and inappropriate enforcement of Article 8(1)(b) CTMR and the applicable case-law.
EN Official Journal of the European Union C 38/16

Action brought on 7 December 2010 — Laboratoire Garnier v OHIM (natural beauty)

(Case T-559/10)

2011/C 38/30

Language in which the application was lodged: English

Parties

Applicant: Laboratoire Garnier et Cie (Paris, France) (represented by: R. Dissmann and A. Steegmann, lawyers)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2010 in case R 971/2010-1;

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

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘natural beauty’ for goods in class 3 — Community trade mark application No 8294233

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 articles 7(1)(b) and (c) of Council Regulation No 207/2009, according to article 65 (2) of Council Regulation No 207/2009, as the Board of Appeal wrongly came to the conclusion that these absolute grounds of refusal apply to the contested trade mark.
EN Official Journal of the European Union C 30/53

Action brought on 29 November 2010 — Biodes v OHIM — Manasul Internacional (FARMASUL)

(Case T-553/10)

()

2011/C 30/94

Language in which the application was lodged: Spanish

Parties

Applicant: Biodes S.L. (Madrid, Spain) (represented by: E. Manresa Medina, 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: Manasul Internacional S.L. (Ponferrada, Spain)

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 2010 in Case R 1034/2009-1, and

— order the defendant and any interveners to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘FARMASUL’ for goods in Classes 5, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Manasul Internacional S.L.

Mark or sign cited in opposition: National figurative marks ‘MANASUL’ and ‘MANASUL ORO’ for goods in Classes 5, 30 and 31.

Decision of the Opposition Division: Opposition rejected and mark applied for granted.

Decision of the Board of Appeal: Appeal upheld and mark applied for refused.

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 207/2009 (1) since there is no similarity between the marks at issue, that the opponent has forgotten to examine the second licence agreement which amended the first licence agreement, and that the opposing mark’s alleged reputation is nonexistent.

(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 63/29

Action brought on 23 December 2010 — X Technology Swiss v OHIM — Brawn (X-Undergear)

(Case T-581/10)

2011/C 63/56

Language in which the application was lodged: German

Parties

Applicant: X Technology Swiss GmbH (Wollerau, Switzerland) (represented by: A. Herbertz and R. Jung, 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: Brawn LLC (Weekhawken, United States of America)

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 October 2010 in Case R 1580/2009-1;

— Order the defendant to bear its own costs and pay those incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘X-Undergear’ for goods and services in Classes 23 and 25.

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

Mark or sign cited in opposition: National and Community word mark ‘UNDERGEAR’ for goods in Class 25.

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 Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the two marks at issue.

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

in the alternative, annul, pursuant to Article 263 of the Treaty on the Functioning of the European Union, Article 2 of the decision of the European Commission of 30 September 2010 amending the decision of 30 June 2010 (C(2010) 4837 final in Case COMP/38.344 — prestressing steel) insofar as it entails an infringement of the principle of non-discrimination in not having extended to TYCSA PSC the additional period for payment of the fine, and fails to state reasons; and
EN Official Journal of the European Union C 80/21

Action brought on 27 December 2010 — Biodes v OHIM — Manasul International (BIESUL)

(Case T-597/10)

2011/C 80/40

Language in which the application was lodged: Spanish

Parties

Applicant: Biodes, SL (Madrid, Spain) (represented by: E. Manresa Medina, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manasul International, SL (Ponferrada, Spain)

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 23 September 2010 in Case R 1519/2009-1;

— order the defendant and any interveners to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Biodes, SL.

Community trade mark concerned: Figurative mark containing the word element ‘BIESUL’ for goods in Classes 5, 30 and 31.

Proprietor of the mark or sign cited in the opposition proceedings: Manasul International, SL.

Mark or sign cited in opposition: National figurative marks containing the word elements ‘MANASUL’ and ‘MANASUL ORO’ for goods in Classes 5, 30 and 31.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal upheld and mark applied for refused.

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 207/2009, (1) since there is no similarity between the marks at issue and the Board of Appeal failed to examine the proof of use of the earlier marks.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2.

Second plea in law, alleging infringement, by reason of incorrect application, of Article 39(3)(b) of Regulation No 1260/1999, since the Commission applies a financial correction to contracts No 2075/2003 and No 2120/2005 on the ground of alleged irregularities in the procedure followed in awarding those contracts, whereas the use of the negotiated procedure without prior publication of a tender notice was perfectly justified by the provisions of Article 6(3)(b) and (c) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1).
EN Official Journal of the European Union C 89/26

Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu)

(Case T-66/11)

2011/C 89/50

Language in which the application was lodged: English

Parties

Applicant: Present Service Ullrich Verwaltungs-GmbH (Erlangen, Germany) (represented by: A. Graf von Kalckreuth, lawyer)

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

Other party to the proceedings before the Board of Appeal: Punt-Nou, SL (Ontynient, 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 19 November 2010 in case R 773/2010-2;

— Dismiss the opposition against the applicant’s trade mark ‘babilu’ and declare that the trade mark ‘babilu’ should be registered for all the goods and services applied for;

— Order the defendant to bear 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 ‘babilu’, for goods and services in classes 16, 18, 35, 36, 38 and 41 — Community trade mark application No 7205305

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 3363645 of the word mark ‘BABIDU’, for amongst others, services in class 35

Decision of the Opposition Division: Accepted the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was likelihood of confusion on the part of the relevant public.
EN Official Journal of the European Union C 72/23

Action brought on 7 January 2011 — Export Development Bank of Iran v Council

(Case T-5/11)

2011/C 72/39

Language of the case: French

Parties

Applicant: Export Development Bank of Iran (represented by: J.-M. Thouvenin, avocat)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

— annul Decision 2010/644/CFSP of 25 October 2010 in so far as it concerns the applicant;

— annul the decision contained in the Council's letter to the applicant of 28 October 2010;

— declare Decision 2010/413/CFSP inapplicable to the applicant;

— order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments put forward by the applicant are essentially identical or similar to those advanced in Case T-4/11 Export Development Bank of Iran v Council.
1.

First plea in law alleging an infringement of the rights of the defence and of the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in that the contested measures: do not provide for a procedure allowing the applicant to be guaranteed effective exercise of his rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing her to effectively request her removal from the list of persons covered by the restrictive measures; at no time provide for the communication of detailed reasons for the inclusion on the list of persons subject to the restrictive measures; at no time provide for the interested person to be notified of the methods and time-limits of actions against the decision to include on the list.