ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 370/29

Action brought on 24 October 2011 — Elsid and Others v Commission

(Case T-557/11)

2011/C 370/48

Language of the case: English

Parties

Applicants: Elsid SA (Titu, Romania), ESD-SIC BV (Delfzijl, Netherlands), ESK-SIC GmbH (Frechen, Germany) and Navarro SIC, SA (Madrid, Spain) (represented by: B. Evtimov, lawyer)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2011) 5934 final of 24 August 2011 rejecting the request for initiation of an expiry review of the anti-dumping measures on imports of silicon carbide originating in the People’s Republic of China; and

— Order the Commission to pay the costs of and occasioned by these proceedings.

Pleas in law and main arguments

In support of the action, the applicants, stressing incorrect application of Article 11(2) of the basic Regulation (1), rely on two pleas in law.

1. First plea in law, alleging — a breach of the principle of proportionality under Article 5(4) TEU. In parallel, or in the alterative, that the Commission made manifest errors of assessment in applying a higher standard of evidence than that sufficient to accept a request for an expiry review.

2. Second plea in law, alleging — a breach of the principle of good administration and of Article 41 of the Charter of Fundamental Rights of the European Union. In parallel, or in the alternative, that the Commission made manifest errors of assessment in finding that Chinese exports to the US were not comparable to the products of the Union industry in the EU and concluding erroneously that the lower Chinese export price to the US than the Union industry’s prices in the EU was therefore unlikely to result in a recurrence of dumping and injury.

(1) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community OJ L343, 22.12.2009, p. 51
EN Official Journal of the European Union C 355/28

Action brought on 14 October 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

(Case T-545/11)

2011/C 355/50

Language of the case: English

Parties

Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

— Declare that the Commission’s decision of 10 August 2011 is in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Regulation (EC) No 1049/2001 (1) and Regulation (EC) No 1367/2006 (2);

— Annul the Commission’s decision of 10 August 2011; and

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

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1. First plea in law, alleging that Article 4(5) of Regulation (EC) No 1049/2011 does not give Member States a right of veto and that, consequently, the defendant may not rely on a Member State’s opinion that the exception of Article 4(2) of the said regulation is applicable or not to the request for information lodged by the applicants.

2. Second plea in law, alleging that the exception to disclosure laid down in Article 4(2), first indent, of Regulation (EC) No 1049/2001 must be waived due to an overriding public interest in disclosing the information requested, as the conditions laid down in Article 6(1) of Regulation (EC) No 1367/2006 are met in the present case.

3. Third plea in law, alleging that the contested decision is not in accordance with Article 4(2) of Regulation (EC) No 1049/2001 and Article 4 of the Aarhus Convention as: — The defendant failed to evaluate the concrete risk of damage by the disclosure of the information requested to the commercial interests invoked; and — The defendant failed to balance the commercial interests concerned against the general interest of disclosure of environmental information as described in Article 4(4), second paragraph, of the Aarhus Convention.

The applicants further allege that should the Aarhus Convention not be directly applicable, Article 4(2) of Regulation (EC) No 1049/2001 should be applied as convention-complaint as possible.

(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)

(2) 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)
EN Official Journal of the European Union C 13/19

Action brought on 26 October 2011 — Kokomarina v OHIM — Euro Shoe Unie (interdit de me gronder I D M G)

(Case T-568/11)

2012/C 13/39

Language in which the application was lodged: French

Parties

Applicant: Kokomarina (Concarneau, France) (represented by: C. Charrière-Bournazel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Euro Shoe Unie NV (Beringen, Belgium)

Form of order sought

The applicant claims that the General Court should:

— declare Kokomarina’s action to be admissible;

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 July 2011 in Case R 1814/2010-1;

— dismiss the opposition brought by EURO SHOE UNIE NV against the application for registration as a Community trade mark of Kokomarina’s mark ‘I D M G — interdit de me gronder’.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark containing the verbal element ‘interdit de me gronder I D M G’ for goods in class 25.

Proprietor of the mark or sign cited in the opposition proceedings: Euro Shoe Unie NV.

Mark or sign cited in opposition: Benelux word mark ‘DMG’ for goods in Classes 18, 25 and 35.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Lack of use of the opposed mark and no likelihood of confusion.
EN Official Journal of the European Union C 6/21

Action brought on 26 October 2011 — tesa v OHIM — Superquimica (tesa TACK)

(Case T-555/11)

2012/C 6/38

Language in which the application was lodged: English

Parties

Applicant: tesa SE (Hamburg, Germany) (represented by: F. Schwab, lawyer)

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

Other party to the proceedings before the Board of Appeal: La Superquimica, SA (L’Hospitalet de Llobregat, 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 5 July 2011 in case R 866/2010-1, and annul the decision of the Opposition Division in case No B 1301987; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘tesa TACK’, for goods in class 16 — Community trade mark application No 6233506

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 registration No 585323 of the word mark ‘TACK’, for goods in class 16; Spanish trade mark registration No 2515958 of the figurative mark ‘TACK Ceys’, for goods in class 16

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 Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.
Action brought on 24 November 2011 — Ecologistas en Acción-CODA v Commission

(Case T-603/11)

(2012/C 25/122)

Language of the case: Spanish

Parties

Applicant: Ecologistas en Acción-CODA (Madrid, Spain) (represented by: J. Doreste Hernández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul the rejection decision of the Secretary General of the European Commission denying access to the documents requested by the applicant in proceedings GESTDEM 2011/6, and

— order the defendant to pay the costs.

Pleas in law and main arguments

The documents to which the applicant has sought access and which are at issue in these proceedings are the same as those in Case T-341/11 Ecologistas en acción-CODA v Commission.

The pleas in law and the main arguments are the same as those raised in that case, seeking the annulment of the implied rejection decision denying the applicant access to the requested documents.
—

the injury and causation analysis are vitiated by errors of fact and a manifest error of assessment and further, that the European Commission and the Council (referred to as ‘Institutions’) violated the principle of due care and Articles 3(2) and 3(6) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (‘basic anti-dumping regulation’) (OJ 2009 L 343, p. 51) by failing to objectively examine the claims that the data provided by Eurostat had been inaccurate;
EN Official Journal of the European Union C 32/26

Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Coffee service set with grooves)

(Case T-566/11)

2012/C 32/55

Language in which the application was lodged: Spanish

Parties

Applicant: Viejo Valle, SA (L'Olleria, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etablissements Coquet SA (Saint Léonard de Noblat, France)

Form of order sought

The applicant claims that the General Court should:

— declare the present action, together with its annexes, admissible;

— annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2011, in Case R 1054/2010-3;

— order the defendant to pay the costs.

Pleas in law and main arguments

Design in respect of which a declaration of invalidity has been sought: Design No 384.912-0001, representing a decorated service set; a coffee cup and saucer.

Proprietor of the Community design: the applicant.

Applicant for the declaration of invalidity of the Community design: Etablissements Coquet SA.

Grounds for the application for a declaration of invalidity: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002, since the Community design constitutes an unauthorised use of a work protected by the copyright legislation of a Member State.

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

Decision of the Board of Appeal: dismissed the action.

Pleas in law: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002 and Article 28(1)(b)(iii) of Regulation No 2245/2002, since the defendant has not sufficiently documented the protected work on which the application for a declaration of invalidity is based, nor provided details of its proprietorship, nor its object.
EN Official Journal of the European Union C 32/29

Action brought on 28 November 2011 — MPDV Mikrolab v OHIM (Lean Performance Index)

(Case T-598/11)

2012/C 32/60

Language of the case: German

Parties

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (Mosbach, Germany) (represented by W. Göpfert, lawyer)

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 15 September 2011 in Case R 131/2011-1;

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

Pleas in law and main arguments

Community trade mark concerned: word mark ‘Lean Performance Index’ for goods and services in Classes 9, 16, 35 and 42.

Decision of the Examiner: registration 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, since the Community trade mark concerned is distinctive and not descriptive.
EN Official Journal of the European Union C 32/29

Action brought on 25 November 2011 — Eni v OHIM — EMI (IP) (ENI)

(Case T-599/11)

2012/C 32/61

Language in which the application was lodged: English

Parties

Applicant: Eni SpA (Roma, Italy) (represented by: D. De Simone and G. Orsoni, lawyers)

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

Other party to the proceedings before the Board of Appeal: EMI (IP) Ltd (London, United Kingdom)

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 8 September 2011 in case R 2439/2010-1; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ENI’, for goods and services in classes 1-4, 6-7, 9, 11, 14, 16-19, 22, 25 and 35 to 45 — Community trade mark application No 6488076

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 4197315 of the word mark ‘EMI’, for goods and services in classes 9, 16, 35, 38, 41 and 42; Community trade mark registration No 6167357 of the figurative mark ‘EMI’, for goods and services in classes 9, 16, 28, 35, 38, 41 and 42

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant challenges the mentioned decision of the First Board of Appeal on the following three grounds: (i) erroneous and non-motivated finding of similarity of goods and services, based on the misunderstanding and misapplication of previous case-law on the point; (ii) erroneous interpretation and application of the Praktiker case, denoting a misunderstanding of its anti-monopolistic inspiring principles and in particular of the ratio that inspired the introduction of registrability of retail services; and (iii) erroneous finding of similarity of signs, and erroneous finding of likelihood of confusion.
EN Official Journal of the European Union C 58/11

Action brought on 19 December 2011 — Asos v OHIM — Maier (ASOS)

(Case T-647/11)

2012/C 58/20

Language in which the application was lodged: English

Parties

Applicant: Asos plc (London, United Kingdom) (represented by: P. Kavanagh, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Roger Maier (San Pietro di Stabio, Switzerland)

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 October 2011 in case R 2215/2010-4;

— Authorise registration of the application mark in respect of all of the goods and services covered by the specification of the application mark; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ASOS’, for goods and services in classes 3, 14, 18, 25 and 35 — Community trade mark application No 4524997

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 4580767 of the word mark ‘ASSOS’, for goods in classes 3, 12 and 25

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Partially annulled the decision of the opposition division

Pleas in law: The Board of Appeal failed to properly consider co-existence and its effect on the global assessment of the likelihood of confusion, and erred in dismissing the relevance of the evidence of co-existence. Further, the Board of Appeal erred in its assessment of the conceptual meaning of the application mark and failed to take into account the correct conceptual meaning of the application mark in assessing likelihood of confusion based on a global assessment.
3.

Third plea in law, alleging an infringement of Articles 11(2), 3(2), (6) and (7) of Council Regulation (EC) No 1225/2009 or of Article 296(2) TFEU in so far as the defendant based its injury and causation findings on manifest errors of assessment or failed to provide sufficient reasons. The defendant committed manifest errors of assessment: — Firstly, when assessing injury indicators in the abstract instead of in relation to the development of demand; and — Secondly, when implicitly relying on the market shares as the essential indicator of a causal link despite the fact that market shares show no clear trend and developed contrary to the other injury factors the Council referred to as important. In any event, the defendant committed a procedural error as the contested regulation does not contain explanations on the obvious impact of the contraction in demand on the injury allegedly suffered by the Union industry.
EN Official Journal of the European Union C 73/28

Action brought on 19 December 2011 — Dimension Data Belgium v Parliament

(Case T-650/11)

2012/C 73/55

Language of the case: French

Parties

Applicant: Dimension Data Belgium SA (Brussels, Belgium) (represented by: P. Levert and M. Velghe, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

— annul the decision of the European Parliament, notified to the applicant by email of 18 October 2011, to reject the applicant’s tender for lot No 1 of the contract PE-ITEC-DIT-ITIM-TELSIS and to award lot No 1 of that contract to the company BT Belgique;

— order the European Parliament to pay the costs.

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 failure to state the reasons for the contested decision as the Parliament did not communicate any characteristics of the successful tender to the applicant.

2. Second plea in law, alleging infringement of the obligation of transparency which is incumbent on the Parliament under Articles 89, 92, 97 and 100 of the Financial Regulation (1) and Article 138 of the Implementing Rules (2) as the Parliament did not give a full, clear and precise definition of the criterion for evaluating the price of the tenders.

3. Third plea in law, alleging a manifest error of assessment in describing the criteria for evaluating the quality of the tenders, infringement of the principle of proportionality and infringement of Article 138(2) of the Implementing Rules, as the contracting authority took into consideration an evaluation criterion which is not designed to identify the tender which is most economically advantageous.

4. Fourth plea in law, alleging a manifest error of assessment in respect of the quality of the financial details and infringement of Article 139 of the Implementing Rules in the award of lot No 1 of the disputed contract to the company BT Belgique since its tender is unusually low, with the result that it should be rejected by the Parliament or, failing that, be regarded as not complying with the specifications.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)
EN Official Journal of the European Union C 65/18

Action brought on 22 December 2011 — IPK International v Commission

(Case T-671/11)

2012/C 65/33

Language of the case: German

Parties

Applicant: IPK International — World Tourism Marketing Consultants GmbH (Munich, Germany) (represented by: C. Pitschas, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the Commission’s decision of 14 October 2011 (ENTR/R1/HHO/lsa — entr.r.1(2011)1183091) in so far as it grants the applicant interest merely in the amount of EUR 158 618,27;

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant submits that the defendant infringed Article 266 TFEU as it incorrectly calculated the compensatory and default interest to be paid as a consequence of the judgment of the General Court of 15 April 2011 in Case T-297/05 IPK International v Commission.
EN Official Journal of the European Union C 157/7

Action brought on 1 March 2012 — Verus v OHIM — Performance Industries Manufacturing (VORTEX)

(Case T-104/12)

2012/C 157/11

Language in which the application was lodged: German

Parties

Applicant: Verus Eood (Sofia, Bulgaria) (represented by: S. Vykydal, lawyer)

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

Other party to the proceedings before the Board of Appeal: Performance Industries Manufacturing, Inc. (Odessa, Florida, United States)

Form of order sought

The applicant claims that the Court should:

— annul the Decision of the Fourth Board of Appeal of 21 December 2011 in Case R 512/2011-4, VORTEX/VORTEX, and refer the case back to the Board of Appeal;

— order the defendant to pay the costs of the proceedings before the Court and the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Performance Industries Manufacturing Inc.

Community trade mark concerned: word mark ‘VORTEX’ for goods in Classes 7 and 12 (Registration No 5 375 324).

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

Mark or sign cited in opposition: Community word mark ‘VORTEX’, registered for services in Classes 35 and 39 (mark No 5 514 104).

Decision of the Opposition Division: rejection of the opposition.

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

Pleas in law: infringement of Article 8(2)(a) and (b) of Regulation No 207/2009, as there is a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 157/10

Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)

(Case T-137/12)

2012/C 157/17

Language of the case: German

Parties

Applicant: FunFactory GmbH (Bremen, Germany) (represented by K.-D. Franzen, lawyer)

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 contested decision (R 1436/2011-4) of the Fourth Board of Appeal of OHIM of 19 January 2012;

— order OHIM to pay the costs of the proceedings, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: three-dimensional mark in the shape of a vibrator (application No 9 390 691) for goods in Class 10

Decision of the Examiner: refusal to register

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009, since the mark applied for is distinctive and is not descriptive of the goods in respect of which registration is sought. Infringement of the duty to state reasons laid down in Article 73(1) of Regulation No 207/2009 and of the right to be heard.