ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 157/8

Action brought on 15 March 2012 — Smartbook v OHIM (SMARTBOOK)

(Case T-123/12)

2012/C 157/13

Language of the case: German

Parties

Applicant: Smartbook AG (Offenburg, Germany) (represented by C. Milbradt and A. Schwarz, lawyers)

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 Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2011 (Case R 799/2011-2);

— 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 ‘SMARTBOOK’ (application No 8 426 348) for goods in Classes 9, 16 and 28

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has distinctive character and is not descriptive of the goods at issue.
EN Official Journal of the European Union C 165/29

Action brought on 29 March 2012 — Bayerische Motoren Werke v OHIM (ECO PRO)

(Case T-145/12)

2012/C 165/49

Language of the case: English

Parties

Applicant: Bayerische Motoren Werke AG (München, Germany) (represented by: C. Onken, 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 18 January 2012 in case R 1418/2011-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ECO PRO’ for goods in classes 9 and 12 — International Registration (IR) No W 1059979

Decision of the Examiner: Refused protection of the International Registration designating the European Union.

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that the International Registration of the applicant’s trademark was devoid of distinctive character within the meaning of this article.
EN Official Journal of the European Union C 165/24

Action brought on 23 March 2012 — Spa Monopole v OHIM — Orly International (SPARITUAL)

(Case T-131/12)

2012/C 165/41

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and É. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: Orly International, Inc (Van Nuys, USA)

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 9 January 2012 in Case R 2396/2010-1;

— order the defendant to pay the costs.

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: Word mark ‘SPARITUAL’ for goods in Class 3 — Community trade mark applied for No 3631884

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

Mark or sign cited in opposition: Benelux registrations of the word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 3, 32 and 42

Decision of the Opposition Division: Rejection of the application for a Community trade mark

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the reputation of the word mark ‘SPA’ in Class 32 and infringement of Article 8(5) of Regulation No 207/2009 in the assessment of the likelihood that unfair advantage would be taken of the repute of the mark ‘SPA’.
EN Official Journal of the European Union C 165/32

Action brought on 5 April 2012 — Sweet Tec v OHIM (Shape of an oval)

(Case T-156/12)

2012/C 165/53

Language of the case: German

Parties

Applicant: Sweet Tec GmbH (Boizenburg, Germany) (represented by T. Nägele, lawyer)

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

Form of order sought

— Annul the contested decision of the First Board of Appeal of OHIM of 19 January 2012 in appeal proceedings R 542/2011-1 relating to the application for Community trade mark No 9 554 171;

— order OHIM to pay the costs of the proceedings, including the costs incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark, representing the shape of an oval, for goods in Classes 16 and 30 (application No 9 554 171).

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 No 207/2009 as the trade mark applied for has distinctive character and is not descriptive of the goods at issue in this case.
EN Official Journal of the European Union C 165/29

Action brought on 30 March 2012 — Wünsche Handelsgesellschaft International v Commission

(Case T-147/12)

2012/C 165/50

Language of the case: German

Parties

Applicant: Wünsche Handelsgesellschaft International mbH & Co KG (Hamburg, Germany) (represented by: K. Landry and G. Schwendinger, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision REM 02/09 of 16 September 2011 (C(2011) 6393 final);

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

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision REM 02/09 of 16 September 2011 (C(2011) 6393 final) determining that remission of import duties is not justified in a particular case, which concerns imports by the applicant of preserved mushrooms of the genus Agaricus — country of origin, China — in 2004 and 2006.

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

1. Infringement of Article 220(2)(b) of the Customs Code — The applicant is doubtful about the Commission’s assessment that there was an error on the part of the German customs authorities in the present case. — In any event, the applicant does not recognise the (alleged) error. The applicant, who acted in good faith and is experienced, cannot be accused of a lack of due care. In view of the complex legal position and the longstanding practice of the German authorities, the applicant can claim a legitimate expectation.

2. Infringement of Article 239 of the Customs Code — The Commission made a procedural legal error in that, by means of a simple reference to refusal pursuant to Article 220(2)(b) of the Customs Code, it summarily also denied remission of import duties under Article 239 of the Customs Code, without any separate assessment. — Furthermore, the Commission also committed a substantive legal error in failing to recognise that there are ‘special circumstances’ for the purposes of Article 239 of the Customs Code in the present case, and that the criteria for remission under that provision were satisfied.
2.

Second plea in law, alleging breach of the principle of proportionality, since the Commission went beyond what was appropriate and necessary in order to achieve the objective pursued — by adopting a decision requiring the applicant to confirm that its response was complete, correct and precise or to communicate the missing information or the necessary amendments so that the response would be complete, correct and precise — whereas, in view of the extent of the information requested, such confirmation was impossible, and the Commission could have taken more appropriate measures to ensure that the applicant’s response could provide a reliable basis for assessing whether the undertakings’ conduct was compatible with Articles 101 and 102 TFEU.
3.

Third plea in law, alleging infringement of Decision 2010/639/CFSP and of Regulation (EC) No 765/2006, as amended, and of the principle of the prohibition of discrimination, first, in so far as the scope of those acts was extended to a businessman without establishing the conduct in support of the regime of President Lukashenko which may be attributed to him and, secondly, in so far as other businessmen, whom the Council also regards as close to the Belarusian authorities, have not, unlike the applicant, been included in the European sanctions lists.
EN Official Journal of the European Union C 109/28

Action brought on 17 February 2012 — Bank Mellat v Council

(Case T-72/12)

2012/C 109/58

Language of the case: English

Parties

Applicant: Bank Mellat (Tehran, Iran) (represented by: S. Zaiwalla, P. Reddy and F. Zaiwalla, Solicitors, M. Brindle, QC (Queen's Counsel), and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2011/783/CFSP (1) and Council Implementing Regulation (EU) No 1245/2011 (2) in so far as they apply to the applicant; and

— Declare Articles 19(1)(b) and 20(1)(b) of Council Decision 2010/413/CFSP (3) and Article 16(2) of Council Regulation (EU) No 961/2010 (4) inapplicable to the applicant;

— Order that Article 60(2) of the Statute of the Court of Justice of the European Union has no application to the annulment of the applicant’s designation; and

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

Pleas in law and main arguments

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

1. First plea in law, alleging that the substantive criteria for designation under Council Decision 2010/413/CFSP and Council Regulation (EU) No 961/2010 are not met in respect of the applicant and/or the defendant committed a manifest error of assessment in determining whether or not those criteria were met when reviewing the applicant’s designation.

2. Second plea in law, alleging that the continued designation of the applicant is in violation of its property rights and the principle of proportionality.

3. Third plea in law, alleging that in continuing the applicant’s designation, the defendant has breached the procedural requirement: (i) to give adequate reasons; and (ii) to respect the right of defence and the right to effective judicial protection.

4. Fourth plea in law, alleging that in so far as the applicant’s application in case T-496/10 Bank Mellat v Council is successful, this application must also succeed.

(1) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71)

(2) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11)

(3) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39)

(4) Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1)
EN Official Journal of the European Union C 109/18

Action brought on 27 January 2012 — LS Fashion v OHIM — Sucesores de Miguel Herreros (L'Wren Scott)

(Case T-41/12)

2012/C 109/41

Language in which the application was lodged: English

Parties

Applicant: LS Fashion, LLC (Wilmington, United States) (represented by: R. Black and S. Davies, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Sucesores de Miguel Herreros, SA (La Orotava, 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 24 November 2011 in case R 1584/2009-4;

— Annul the decision of the Opposition Division in so far as it upheld the opposition;

— Allow CTM application No 5190368 to proceed for registration in its full extent; and

— Order the Office and the other party to the proceedings to bear their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘L’Wren Scott’, for goods in classes 3, 9, 14 and 25 — Community trade mark application No 5190368

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: Spanish trade mark application No 1164120 of the word mark ‘LOREN SCOTT’, for goods in class 25

Decision of the Opposition Division: Upheld the opposition for all the contested goods and allowed the CTM application to proceed for the remaining non-contested goods of the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation No 207/2009, and Rules 22(2) and (3) of Commission Regulation No 2868/95, as the Board of Appeal failed to properly assess the evidence submitted by the opponent as to its genuine use of the earlier mark in light of the requirements imposed by the relevant provisions and by case-law, including the requirements to consider the place, time, extent and nature of use of a mark. Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed: (i) to properly assess the visual, aural and conceptual similarity of the respective marks; and (ii) to properly take into account the appropriate degree of similarity of the respective marks, and properly assess the degree of distinctiveness of the marks, including the likelihood of confusion.
EN Official Journal of the European Union C 118/31

Action brought on 21 February 2012 — Lilleborg v OHIM — Hardford (Pierre Robert)

(Case T-85/12)

2012/C 118/52

Language in which the application was lodged: English

Parties

Applicant: Lilleborg AS (Oslo, Norway) (represented by: E. Ullberg and M. Plogell, lawyers)

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

Other party to the proceedings before the Board of Appeal: Hardford AB (Limhamn, Sweden)

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 7 December 2011 in case R 2462/2010-1, and consequently order OHIM to evaluate the proof of existence, validity and scope of the earlier mark that the applicant has submitted;

— Or, alternatively, alter the decision of the First Board of Appeal by a decision of its own and refuse the registration of Community trade mark No 8541849 ‘Pierre Robert’; and

— Order the defendant to pay the costs of the proceedings, including those incurred in the proceedings before the Opposition Division and the First Board of Appeal of OHIM.

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 word mark ‘Pierre Robert’, for goods and services in classes 3, 5 and 44 — Community trade mark application No 8541849

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

Mark or sign cited in opposition: Swedish trade mark registration No 164251 of the word mark ‘PIERRE ROBERT’, for goods in class 3

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 50(1) of Commission Regulation No 2868/95 and Articles 76, 8 and 8(2)(c) of Council Regulation No 207/2009, as the Board of Appeal: (i) has neglected its right to examine the facts of its own motion, and take into consideration facts that are apparently likely to affect the outcome of the opposition; (ii) erred in law when it did not consider that ‘PIERRE ROBERT’ is a well known mark; (iii) failed when not considering the evidence, Annex 1, which was submitted in connection with the filing of the opposition; and (iv) failed when not accepting the certificate from the Swedish Patent and Registration Office filed before the decision of the opposition division.
4.

By its fourth plea in law, the applicant claims that there were insufficiencies surrounding the adoption of the contested measures, in so far as the Council failed to set out therein the fundamental rights and principles which European Union law grants to the addresses of those measures, and in so far as those measures were adopted on the basis of Article 215 TFEU, which the applicant regards as devoid of any democratic guarantees.
EN Official Journal of the European Union C 126/23

Action brought on 27 February 2012 — Iranian Offshore Engineering & Construction v Council

(Case T-110/12)

2012/C 126/45

Language of the case: Spanish

Parties

Applicant: Iranian Offshore Engineering & Construction Co. (Tehran, Iran) (represented by: J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

— annul Article 1 of Council Decision 2011/783/CFSP in so far as it concerns it and remove its name from the annex thereto;

— annul Article 1 of Council Implementing Regulation (EU) No 1245/2011 in so far as it concerns it and remove its name from the annex thereto;

— order the Council to pay the costs.

Pleas in law and main arguments

The present proceedings have been brought against Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran, in so far as the applicant's name has been added to the list of addressees of the measures laid down therein.

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

1. First plea in law: failure to comply with the duty to state reasons, since the contested acts contain erroneous grounds which are unfounded in respect of the applicant.

2. Second plea in law: infringement of the right to effective judicial protection in relation to the grounds on which the acts are based, since the duty to state reasons was not complied with.

3. Third plea in law: infringement of the right to property, since that right was restricted without valid justification.

4. Fourth plea in law: infringement of the principle of equal treatment, as the applicant was treated in the same way as the undertakings which actually participated in Iran's nuclear proliferation, which unjustly relegates it to an inferior competitive position compared with the other national and foreign entities which compete with it on various markets.
1.

First plea in law, alleging infringement of the applicant’s rights of defence — In the applicant’s submission, the Council infringed the applicant’s right to effective legal protection and, in particular, the obligation to state reasons by failing to supply sufficient grounds for the applicant’s renewed inclusion in the lists of persons, entities and bodies subject to restrictive measures in accordance with Article 23 of the contested regulation. — The Council infringed the applicant’s right to be heard by not giving the applicant the opportunity to comment beforehand on its renewed inclusion in the sanctions lists and thereby to trigger a review by the Council.
EN Official Journal of the European Union C 217/25

Action brought on 14 May 2012 — Shark v OHIM — Monster Energy (UNLEASH THE BEAST!)

(Case T-217/12)

2012/C 217/54

Language in which the application was lodged: English

Parties

Applicant: Shark AG (Innsbruck, Austria) (represented by: D. Campbell, Barrister, and P. Strickland, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Monster Energy Company (Corona, United States)

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 1 March 2012 in case R 360/2011-1; and

— Order the Office and the other party to the proceedings before the Board of Appeal to bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘UNLEASH THE BEAST!’, for goods in class 32 — Community trade mark registration No 5093174

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: Community trade mark registration No 2729366 of the word mark ‘BRING OUT THE BEAST’, for goods in class 32; Community trade mark registration No 2730133 of the figurative mark ‘COOL BITE BRING OUT THE BEAST’, for goods in class 32

Decision of the Cancellation Division: Declared the invalidity of the contested community trade mark

Decision of the Board of Appeal: Annulled the contested decision and rejected the application for a declaration of invalidity

Pleas in law: Infringement of Article 57(2) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 209/9

Action brought on 9 May 2012 — Nuna International v OHIM — Nanu-Nana Joachim Hoepp (nuna)

(Case T-195/12)

2012/C 209/14

Language in which the application was lodged: English

Parties

Applicant: Nuna International BV (Erp, Netherlands) (represented by: A. Alpera Plazas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Nanu-Nana Joachim Hoepp GmbH & Co. (Bremen, 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 15 February 2012 in case R 476/2011-1; and

— Grant the contested community trade mark application for all the goods designated in the application.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘nuna’, for goods in classes 12, 18, 20, 21, 25 and 28 — Community trade mark application No 6239743

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 application No 6218879 of the word mark ‘NANU’; Community trade mark No 6218945 of the word mark ‘NANA’ for goods and services in classes 4, 6, 8, 11, 14, 16, 18, 20, 21, 24, 26, 28, 30, 34 and 35; Community trade mark No 6217814 of the word mark ‘NANU-NANA’ for goods and services in classes 16, 18, 20, 21, 24, 25, 28 and 35; German trade mark No 36647710 of the word mark ‘NANU’; German trade mark No 39804075 of the word mark ‘NANA’; German trade mark No 1054703 of the word mark ‘NANU-NANA’; International trade mark registration No 557176 of the word mark ‘NANU-NANA’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision, upheld the opposition and rejected the community trade mark application

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009