ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 346/55

Action brought on 22 October 2010 — Prima TV v Commission

(Case T-504/10)

()

2010/C 346/107

Language of the case: Italian

Parties

Applicant: Prima TV SpA (Milan, Italy) (represented by: L. Fossati and L. Perfetti, lawyers)

Defendant: European Commission

Form of order sought

— Annul the contested decision.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The decision that is contested in the present case is the same as that in Case T-501/10 TI Media Broadcasting and TI Media v Commission.

The applicant relies on three grounds in support of its claims.

By the first ground, the applicant seeks annulment of the decision, alleging infringement of legal provisions in the form of a manifest error of assessment, since the Commission found incorrectly that the conditions in the Italian pay-TV market had changed since 2003 to such an extent that it was possible to revise the commitments given by Newscorp in Case COMP/M.2876. All the evidence shows that, on the contrary, the market conditions which determined the commitments given to and accepted by the Commission in 2003 have not changed in any significant or lasting manner. In particular, Sky Italia still holds a position of absolute dominance in the Italian pay-TV market.

By the second ground, the applicant seeks annulment of the decision, alleging infringement of legal provisions and misuse of power, including as a result of manifest error of assessment, and infringement of the principle of proportionality, since the Commission amended the commitments given by Newscorp in Case COMP/M.2876 on the incorrect assumption that the fact that Sky Italia was not to participate in the next procedure for the allocation of terrestrial digital frequencies would preclude it from engaging in free-to-air television broadcasting in Italy. It is submitted in this connection that, on the contrary, Sky Italia is already active in free-to-air television broadcasting in Italy, broadcasts on digital terrestrial frequencies and will be able to acquire transmission capacity even if the commitments in question are not amended.

By the third ground, the applicant seeks annulment of the decision, alleging infringement of legal provisions and manifest error of assessment, since the Commission amended the commitments given by Newscorp in Case COMP/M.2876 at the request of Sky Italia, notwithstanding the fact that the replies received during the investigation into the market which took place during the administrative procedure — including those sent by Italian public bodies — gave clear indications of the negative impact which the amendment of the commitments in question would have in terms of competition at national level.
EN Official Journal of the European Union C 13/34

Action brought on 5 November 2010 — Azienda Agricola Colsaliz di Faganello Antonio v OHIM — Weinkellerei Lenz Moser (SERVO SUO)

(Case T-525/10)

()

2011/C 13/65

Language in which the application was lodged: Italian

Parties

Applicant: Azienda Agricola Colsaliz di Faganello Antonio (Refrontolo, Italy) (represented by: G. Massa and P. Massa, 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: Weinkellerei Lenz Moser AG (Linz, Austria)

Form of order sought

— Annul the contested decision.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Azienda Agricola Colsaliz di Faganello Antonio.

Community trade mark concerned: Word mark ‘SERVO SUO’ (application No 5 798 244) for goods in Class 33.

Proprietor of the mark or sign cited in the opposition proceedings: Weinkellerei Lenz Moser Aktiengesellschaft.

Mark or sign cited in opposition: Community word mark ‘SERVUS’ (No 579 193), international figurative marks containing the word element ‘SERVUS’ (Nos 580 447 A and 844 793) and the international word mark ‘SERVUS’ (No 727 131), for goods in Class 33.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication and misinterpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 346/52

Action brought on 19 October 2010 — Dorma v OHIM — Puertas Doorsa (doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS)

(Case T-500/10)

()

2010/C 346/103

Language in which the application was lodged: English

Parties

Applicant: Dorma GmbH & Co. KG (Ennepetal, Germany) (represented by: P. Koch Moreno, lawyer)

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

Other party to the proceedings before the Board of Appeal: Puertas Doorsa, SL (Petrel, 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 17 August 2010 in case R 542/2009-4; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear 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 “doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS”, for goods in classes 6, 9 and 19 — Community trade mark application No 4884359

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

Mark or sign cited: German trade mark registration No 39525884 of the figurative mark “DORMA”, for goods and services in classes 6, 9, 16, 19 and 37; United Kingdom trade mark registration No 2201691 of the word mark “DORMA” for goods in classes 6, 7, 9, 16 and 19; International trade mark registration No 722009 of the figurative trade mark “DORMA” for goods in classes 6, 7, 9, 16 and 19

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal misapplied the provisions of this article to the contested trade mark.
EN Official Journal of the European Union C 30/52

Action brought on 3 December 2010 — riha Richard Hartinger Getränke v OHIM — Lidl Stiftung (VITAL&FIT)

(Case T-552/10)

()

2011/C 30/93

Language in which the application was lodged: German

Parties

Applicant: riha Richard Hartinger Getränke GmbH & Co. Handels-KG (Rinteln, Germany) (represented by: P. Goldenbaum, T. Melchert and I. Rohr, 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: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

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) (OHIM) of 5 October 2010 in Case R 1229/2009-4;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark containing the word element ‘VITAL&FIT’ for goods in Class 32

Proprietor of the mark or sign cited in the opposition proceedings: Lidl Stiftung & Co. KG

Mark or sign cited in opposition: five earlier rights, including the national word mark ‘VITAFIT’ for goods in Class 32

Decision of the Opposition Division: opposition upheld

Decision of the Board of Appeal: appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as the marks at issue are not so similar that there is a likelihood of confusion, and infringement of rules of procedure in that the Board of Appeal did not itself examine the supposed aural similarity of the marks, did not take account of decisions of OHIM and of the Court, to which the parties referred, did not have regard to those decisions and did not make it clear whether it did in fact take into account only German commercial circles and their views

(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 13/28

Action brought on 15 October 2010 — SNCF v OHIM (infotrafic)

(Case T-491/10)

()

2011/C 13/54

Language in which the application was lodged: French

Parties

Applicant: Société nationale des chemins de fer français (SNCF) (Paris, France) (represented by: H. Reynaud, 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: Infotrafic SA (Ermont, France)

Form of order sought

— Alter paragraphs 16 to 23 of the decision of the Board of Appeal of OHIM of 6 August 2010 in Case R 1268/2009-2.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘infotrafic’ for goods and services in Classes 9, 16, 38, 39 and 42 — Community trade mark No 1 926 815

Proprietor of the Community trade mark: Infotrafic SA

Applicant for the declaration of invalidity: The applicant

Decision of the Cancellation Division: Rejected the application for declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 52 and 7(1)(b) of Regulation No 207/2009, in so far as the examination of a complex Community trade mark in which one of the elements is devoid of distinctive character or has questionable distinctive character should consider each element separately: infringement of the obligation to state reasons.
—

Annul the decision of the Secretary-General of the European Parliament of 7 October 2010, addressed to Mr Riccardo Nencini, and Communication No 315653 of the Director General of the European Parliament’s Directorate-General for Finances of 13 October 2010 concerning ‘Recovery of undue payments in relation to the payment of parliamentary assistance and travel allowances — Debit note’, and of the following acts, already the subject of an earlier action pending before the Court in Case T-431/10: the decision of the Secretary-General of the European Parliament of 16 July 2010, addressed to the applicant and, in so far as necessary, any other acts prior to, related to or consequential upon the decision challenged in those proceedings; Communication No 312331 of the Director General of the European Parliament’s Directorate-General for Finances of 4 August 2010, addressed to Mr Riccardo Nencini and prior, related and consequential acts.
EN Official Journal of the European Union C 30/48

Action brought on 24 November 2010 — Spain v Commission

(Case T-540/10)

()

2011/C 30/87

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, lawyer)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2010) 6154 of 13 December reducing the assistance granted from the Cohesion Fund to the following projects — ‘Línea de Alta Velocidad Madrid-Zaragoza-Barcelona-Frontera francesa. Tramo Lleida-Martorell (Plataforma). Subtramo IX-A’ (CCI No 2001.EC.16.C.P.T. 005) — ‘Línea de Alta Velocidad Madrid-Zaragoza-Barcelona-Frontera francesa. Tramo Lleida-Martorell (Plataforma). Subtramo X-B (Avinyonet del Penedés-Sant Sadurní d’Anoia’ (CCI No 2001.EC.16.C.P.T. 008) — ‘Línea de Alta Velocidad Madrid-Zaragoza-Barcelona-Frontera francesa. Tramo Lleida-Martorell (Plataforma). Subtramo XI-A and XI-B (Sant Sadurní d’Anoia-Gelida)’ (CCI NO 2001.ES.16.C.P.T.009) and — ‘Línea de Alta Velocidad Madrid- Zaragoza-Barcelona-Frontera francesa. Tramo Lleida-Martorell (Plataforma). Subtramo IX-C’ (CCI NO 2001.ES.16.C.P.T.0010)

— alternatively, partially annul the decision in so far as it refers to the corrections applied to the amendments arising from exceeding the noise thresholds (Subsection IX-A), the change of PGOU of the Ayuntamiento de Santa Oliva (Subsection IX-A) and the differences in the geotechnical conditions (Subsections X-B. IX-A, XI-B and IX-C), reducing the amount of the correction by EUR 2 348 201,96;

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

Pleas in law and main arguments

By the contested decision, the Commission reduced the aid from the Cohesion Fund initially granted to the phase of the projects mentioned above, because of alleged irregularities in the application of the law on public procurement.

The Kingdom of Spain takes the view the decision should be annulled on three different grounds:

(a) Infringement of Article H(2) of Annex II to Regulation No 1164/94 (1) as the Commission failed to take a decision within the period of three months from the date of the hearing.

(b) Infringement, by reason of incorrect application, of Article 20(2)(f) of Directive 93/38 (2) since contracting for additional services is a matter conceptually distinct from the amendment of a contract which is being executed laid down by Spanish public procurement law, so that that amendment does not fall within the scope of Directive 93/38.

(c) In the alternative, infringement of Article 20(2)(f) of Directive 93/38 on the ground that all the requirements were fulfilled in order for the Spanish authorities to adjudicate by way of the negotiation procedure without advertising the additional works carried out in the four phases of the project affected by the correction.

(1) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).

(2) Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 82, p. 40).
EN Official Journal of the European Union C 55/30

Action brought on 21 December 2010 — macros consult GmbH v OHIM (makro)

(Case T-579/10)

2011/C 55/54

Language in which the application was lodged: German

Parties

Applicant: macros consult GmbH — Unternehmensberatung für Wirtschafts- und Finanztechnologie (Ottobrunn, Germany) (represented by: T. Raible, 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: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

Form of order sought

The applicant claims that the General Court should

— Alter the decision of the Fourth Board of Appeal of OHIM given on 18 October 2010 in Case R 339/2009-4 so that the appeal brought by the applicant before the Board of Appeal is well-founded and therefore the application for a declaration of invalidity is granted;

— Order OHIM and MIP Metro Group to pay the costs incurred in the invalidity proceedings, appeal proceedings and the present proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element ‘makro’ and registered in respect of goods and services in classes 1 to 42.

Proprietor of the Community trade mark: MIP Metro Group Intellectual Property GmbH & Co. KG.

Applicant for the declaration of invalidity: The applicant.

Trade mark right of applicant for the declaration: Application for a declaration of invalidity under Article 53(1)(c) and Article 53(2) of Regulation (EC) No 207/2009 (1) brought against the registered goods and services in classes 9, 35, 36 and 41.

Decision of the Cancellation Division: Rejection of the application.

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

Pleas in law: Breach of Article 53(1)(c) and Article 53(2) and Article 8(4) of Regulation (EC) No 207/2009, as the applicant used the designation ‘macros Consult’ as its name and business name/trade name already prior to the date of filing the application for the contested trade mark and therefore has a prior right under the first sentence of Paragraph 5(2) of the Law on trade marks (Markengesetz).

(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 80/21

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

(Case T-598/10)

2011/C 80/41

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)

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 1520/2009-1;

— 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 ‘LINEASUL’ 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).
EN Official Journal of the European Union C 55/34

Appeal brought on 3 January 2011 by Gerhard Birkhoff against the judgment of the Civil Service Tribunal delivered on 27 October 2010 in Case F-60/09, Birkhoff v Commission

(Case T-10/11 P)

2011/C 55/60

Language of the case: Italian

Parties

Appellant: Gerhard Birkhoff (Weitnau, Germany) (represented by C. Inzillo, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Annul the contested decision

— Order the Commission to pay the costs of both sets of proceedings

Pleas in law and main arguments

This case seeks to have set aside the judgment of the Civil Service Tribunal in Case F-60/09 Birkhoff v Commission by which the Tribunal dismissed the action against the decision of the defendant refusing to extend the payment of the dependent child allowance which the appellant has received for his disabled daughter since 1978.

The appellant relies on seven pleas in law in support of his appeal:

— The first plea alleges breach of the rules of the Staff Regulations of Officials of the European Communities and of the principles of legal certainty and equal treatment.

— The second plea alleges an error of law in the finding that the applicant put forward a single plea in the application initiating proceedings (Article 2(5) of Annex VII to the Staff Regulations), thus limiting the claims which should, in fact, have included the misapplication of the legislation and related provisions in the area at issue.

— The third plea alleges an error of law, failure to state reasons and breach of Community law in that the Court of First Instance decided the dispute on the basis of analogy and in the complete absence of any certain legal criterion and/or rule of reference.

— The fourth plea alleges an error of law and omission and failure to state reasons in the assessment of the evidence adduced by the applicant in support of his arguments.

— The fifth plea alleges failure to respect the general and inviolable principles of equality between individuals and manifest lack of foundation for the application and interpretation of the relevant legislation and/or directives for the case at issue.

— The sixth plea alleges lack of competence, failure to state reasons and misuse of powers as regards the decision regarding deductible expenses wholly or partly attributable to the illness of the member of the applicant's family, made by the Tribunal on the basis of an opinion of the medical officer of the Joint Sickness Insurance Scheme rather than of the administration.
—

The fifth plea alleges infringement of Article 106(2) TFEU, of the Community framework for state aid in the form of public service compensation (OJ 2005 C 297, p. 4) and of Article 11(4) of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), given that (i) the measure is not justified on the grounds of any risk to the electricity supply, which would determine — as the Commission claims is the case — that there is a need for a service of general economic interest and (ii) even if there were a risk to the electricity supply (which there is not), the measure is in any event disproportionate to the objective of safeguarding the security of the electricity supply and is, therefore, unlawful.
EN Official Journal of the European Union C 80/28

Action brought on 19 January 2011 — Universal v Commission

(Case T-42/11)

2011/C 80/53

Language of the case: English

Parties

Applicant: Universal Corp. (Richmond, United States) (represented by: C.R.A. Swaak, lawyer)

Defendant: European Commission

Form of order sought

— Annul the contested decision set out in the letters of 12 and 30 November 2010; and/or

— Declare that the applicant cannot be held liable to pay for any part or all of the fine imposed in this case until a definitive judgment in case T-12/06 Deltafina v Commission or any follow-on proceedings is issued; and

— Condemn the Commission to the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Commission Decision contained in the letter from the Commission to Universal Corporation, dated 12 November 2010, and confirmed by the letter dated 30 November 2010, requiring the latter to pay the joint and several fine imposed on Universal Corporation and Deltafina SpA in case COMP/C.38.281.B2 — Raw Tobacco Italy of 20 October 2005 following the withdrawal of case T-34/06 Universal Corp. v Commission but prior to the resolution of case T-12/06 Deltafina SpA v Commission and any follow-on proceedings.

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

1. First plea in law, alleging that the contested decision is vitiated; — The contested decision is vitiated insofar as the fine is fully covered by the guarantee provided by its subsidiary Deltafina. The applicant is only jointly and severally liable as the 100 % parent company for the payment of the fine imposed by the Commission on Deltafina for its direct participation in the infringement. The withdrawal of the application for annulment lodged by the applicant is therefore irrelevant to the question of when the fine must be paid.

2. Second plea in law, alleging a breach of the principle of protection of legitimate expectations; — The contested decision violates the principle of protection of legitimate expectations in relation to the validity of the bank guarantee until the conclusion of the Deltafina proceedings. On the basis of the Commission's acceptance of a bank guarantee relating to the application for annulment by Deltafina, the Commission created the legitimate expectation that it would refrain from seeking payment of the fine prior to a definitive judgment in case T-12/06. The Commission further violated the applicant's legitimate expectation of consistent treatment by the Commission of the applicant and Deltafina as a single undertaking for the purposes of liability and enforcement.