ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 107/32

Action brought on 11 February 2008 — Travel Servis v OHIM — Eurowings Luftverkehrs (smartWings)

(Case T-72/08)

(2008/C 107/53)

Language in which the application was lodged: English

Parties

Applicant: Travel Service a.s. (Prague, Czech Republic) (represented by: S. Hejdová)

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

Other party to the proceedings before the Board of Appeal: Eurowings Luftverkehrs AG (Dortmund, Germany)

Form of order sought

— Alter the contested decision of the Second Board of Appeal in Case R 1515/2006-2 as follows: — annul the Opposition Division decision relating to opposition proceedings No B 782 351 of 29 September 2006 in its entirety; — order the opponent to bear the costs incurred by the applicant with respect to the opposition and the appeal proceedings before the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative Community trade mark ‘smartWings’ for goods and services in classes 16, 21, 37, 39, 41 and 43 — Application No 3 650 595

Proprietor of the mark or sign cited in the opposition proceedings: Eurowings Luftverkehrs AG

Mark or sign cited: The national and international word mark ‘EuroWings’ for goods and services in classes 16 and 41, the national and international word mark ‘EUROWINGS’ for goods and services in classes 39 and 42 and the national word mark ‘WINGSGLASS’ for goods and services in classes 16, 39, 41 and 42

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 and of essential procedural requirements enshrined in Articles 73 and 79 CTMR.
EN Official Journal of the European Union C 116/26

Action brought on 11 March 2008 — Italy v Commission and EESC

(Case T-117/08)

(2008/C 116/48)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendants: Commission of the European Communities, European Economic and Social Committee

Form of order sought

— The Italian Republic challenges before the Court of First Instance of the European Communities the following acts published by the EESC: (1) vacancy notice No 73/07 concerning a post of Secretary-general in the Secretariat of the European Economic and Social Committee, published only in the English, French and German versions of the Official Journal of the European Union C 316 A of 28 December 2007; (2) corrigendum to the vacancy notice published only in the English, French and German versions of the Official Journal of the European Union C 25 A of 30 January 2008.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-156/07 Spain v Commission (1).

In addition to infringement of Regulation No 1/58 and Article 290 EC, the applicant submits in particular, on the ground of lack of the requisite competence, infringement of Article 12 EC, Article 22 of the Charter of Fundamental Rights of the European Union, Article 6 of the Treaty on European Union and a number of provisions of the Staff Regulations of the European Civil Service, as well as a failure to state adequate reasons and misuse of power in the present case.

(1) OJ C 140, 23.6.2007, p. 42.
EN Official Journal of the European Union C 107/26

Action brought on 26 January 2008 — EREF v Commission

(Case T-40/08)

(2008/C 107/45)

Language of the case: English

Parties

Applicant: European Renewable Energies Federation ASBL (EREF) (Brussels, Belgium) (represented by: D. Fouquet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— The Decision C(2007) 4323 final of the European Commission of 25 September 2007 is declared null and void;

— the financial vehicle in question in its present shape and structure is declared unlawful state aid;

— the European Commission is ordered to pay all procedural costs, including the costs of the claimant.

Pleas in law and main arguments

In 2004 the applicant filed a complaint with the Commission claiming that different aspects of the financing of a new power plant under construction in Finland amounted to state aid that had not been notified. The state aid aspects of the complaint were registered by the Commission under case number CP 238/04 and in 2006 the Commission decided to split the file into two separate cases numbered NN 62/A/2006 and NN 62/B/2006.

In the present case, the applicant seeks annulment of Commission Decision C(2007) 4323 final of 25 September 2007 concerning case NN 62/A/2006, notified to it on 14 November 2007, by which the Commission concluded that the export guarantee provided by the French export credit agency (‘COFACE’) granting a credit for the financing of the new power plant unit ‘Olkiluoto 3’ purchased by the Finnish electricity generation company Teollisuuden Voima Oy (‘TVO’) did not constitute illegal state aid and thus, decided to close the investigation.

The applicant claims that the export guarantee or credit insurance of EUR 570 000 provided by COFACE to TVO constitutes illegal intercommunity aid due to its financial impact on the overall financing package of the project concerned. The applicant contends that the guarantee constituted unlawful state aid in so far as it was provided by COFACE acting as a public agency on the account of France which undertook responsibility to cover repayment of the credit to the bank consortium in case TVO was unable to pay and in so far as it conferred an unfair economic advantage to TVO, facilitating its access to the market and securing its future financing potential. In addition, the applicant submits that such a secured loan will enable TVO to produce electricity at a considerably lower cost.

Further, it asserts that the splitting of the file into two separate cases violates essential procedural rules and leads to incorrect assessments.
EN Official Journal of the European Union C 142/31

Action brought on 2 April 2008 — ENRI Electronics v OHIM (MaxiBridge)

(Case T-132/08)

(2008/C 142/56)

Language in which the application was lodged: German

Parties

Applicant: ENRI Electronics GmbH (Adelberg, Germany) (represented by N. Breitenbach, 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 OHIM of 30 January 2008 in Case R 1530/2006-4;

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘MaxiBridge’ for goods in Classes 9 and 17 (Application No 4 899 647).

Decision of the Examiner: Application rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 40/94 (1) inasmuch as the mark in respect of which application is sought does not constitute an indication which needs to be kept freely available.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 116/27

Action brought on 10 March 2008 — PC-Ware Information Technologies BV v Commission of the European Communities

(Case T-121/08)

(2008/C 116/49)

Language of the case: Dutch

Parties

Applicant: PC-Ware Information Technologies BV (Amsterdam, Netherlands) (represented by: L. Devillé, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare the action for annulment admissible;

— Annul the decision of the Directorate-General of the European Commission, communicated to the applicant by letter of 11 January 2008, which rejected the applicant's tender for public procurement contract DIGIT/R2/2007/022 — LAR 2007 and awarded the contract to the successful tender;

— Declare that the Commission's action was unlawful and gives rise to the Commission's liability;

— In the alternative, if the contract has already been carried out when the Court gives judgment or the decision can no longer be declared void, order the Commission to pay damages of EUR 654 962,38 as compensation for the loss suffered by the applicant in regard to that procedure;

— Order the Commission to pay the costs of the proceedings and other costs even if the action is dismissed.

Pleas in law and main arguments

The applicant took part in public procurement procedure DIGIT/R2/2007/022 — LAR 2007 — Large account reseller Microsoft products (LAR 2007) (OJ 2007 S 183-223062), whose objective was to establish a framework contract for a single source purchase channel, covering the acquisition of Microsoft software products and licences. The applicant contests the Commission's decision to award that contract to another undertaking.

In support of its application, the applicant submits, first, that insufficient reasons are given for the decision. The applicant states that upon the submission of its offer it stated expressly that it gave the highest possible reduction on the basis of Article 40 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which prohibits sales at a loss. The Commission failed to give sufficient reasons in the decision with regard to the application of that prohibition and compliance with the principle of equal treatment.

Secondly, the applicant submits that it is apparent that the successful offer infringes Article 40 of the abovementioned Belgian Law of 14 July 1991. According to the applicant, the Commission should have refused the successful offer pursuant to Article 55 of Directive 2004/18/EC (1), Article 139(1) and Article 146(4) of Regulation No 2342/2002 (2) and the principles of good administration.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

(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 158/19

Action brought on 17 April 2008 — Atlas Transport v OHIM — Atlas Air (ATLAS)

(Case T-145/08)

(2008/C 158/31)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, Rechstanwälte)

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

Other party to the proceedings before the Board of Appeal of OHIM: Atlas Air, Inc. (New York, 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 24 January 2008 (Case R 1023/2007-1);

— order the defendant 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: Word mark ‘ATLAS’ for goods and services in classes 9, 36 and 39 (Community trade mark No 2 970 788).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: Atlas Air, Inc.

Trade mark right of applicant for the declaration: In particular the figurative mark ‘ATLASAiR’ registered in the Benelux States for goods in class 39 (No 555 184).

Decision of the Cancellation Division: Community trade mark declared partially invalid for services in class 39.

Decision of the Board of Appeal: Applicant's appeal dismissed as inadmissible.

Pleas in law: Infringement of the third sentence of Article 59 of Regulation (EC) No 40/94 (1), as the grounds of the appeal were linked to very specific assumptions and implicit grounds were not regarded as being sufficient. Further, analogous infringement of Article 61 of Regulation No 40/94 in conjunction with Rule 20(7) of Regulation (EC) No 2868/95 (2), as the proceedings before OHIM should necessarily have been suspended.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 142/35

Action brought on 2 April 2008 — Italian Republic v Commission of the European Communities

(Case T-142/08)

(2008/C 142/64)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: Commission of the European Communities, European Personnel Selection Office

Form of order sought

The applicant claims that the Court should:

— annul Notice of open competitions EPSO/AD/116/08 and EPSO/AD/117/08 to constitute a reserve list comprising 30 Administrator posts (AD8) and 20 Principal Administrator posts (AD11) in the field of fraud prevention;

— annul Notice of open competition EPSO/AST/45/08 to constitute a reserve list comprising 30 Assistant posts (AST4) in the field of fraud prevention.

Pleas in law and main arguments

The pleas in law and principal arguments are similar to those put forward in Case T-117/08 Italy v Commission (1).

(1) Not yet published in the Official Journal of the European Union.
EN Official Journal of the European Union C 171/48

Action brought on 13 May 2008 — Infeurope v Commission

(Case T-188/08)

(2008/C 171/91)

Language of the case: English

Parties

Applicant: Infeurope SA (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— declare that the European Commission has failed to annul the decision of awarding the framework contracts under the call for tenders procedure AO/026/06 of the OHIM on consultancy services, audits and studies;

— declare that the European Commission has failed to terminate the specific contracts concluded under the said framework contracts;

— order the European Commission to pay to the applicant the sum of EUR 35 950 plus 4 % interest on the amount of EUR 33 050 from 19 December 2006, plus 4 % interest on the amount of EUR 2 900 from 14 December 2007; respectively 8 % interest on sum of EUR 35 950 from the date of judgment;

— order the European Commission to pay to the applicant the sum of EUR 646 631,27, plus 4 % interest on the said sum from 14 May 2008, respectively 8 % interest on the said sum from the date of judgment;

— order the European Commission to produce certain documents relating to the procedure for evaluating the tenders;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the declaration that the Commission failed to annul the decision taken by the Office for Harmonisation in the Internal Market (OHIM) awarding multiple framework contracts under the tender procedure AO/026/06 of the OHIM on ‘E-Alicante: consultancy services, audits and studies’ (1) and that it has failed to terminate the corresponding specific contracts under the framework.

The pleas in law and main arguments raised by the applicant are identical to those raised in Case T-176/08 Infeurope v Commission.

(1) OJ 2006/S 210-223510.
EN Official Journal of the European Union C 197/32

Action brought on 9 June 2008 — Paul Alfons Rehbein v OHIM — Hervé Dias Martinho and Manuel Dias Martinho (Outburst)

(Case T-214/08)

(2008/C 197/56)

Language in which the application was lodged: English

Parties

Applicant: Paul Alfons Rehbein (GmbH & Co.) KG (Glinde, Germany) (represented by: T. E. Lampel, lawyer)

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

Other parties to the proceedings before the Board of Appeal: Hervé Dias Martinho and Manuel Carlos Dias Martinho (Le Plessis Trévise, France)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2008 in case R 1261/2007-2; and

— order OHIM to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The other parties to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Outburst’ for goods in classes 16, 18 and 25 — application No 4 318 333

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

Mark or sign cited: The national word mark ‘Outburst’ for goods in class 25 — German trade mark registration No 399 40 713

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Council Regulation No 40/94 as the earlier national trade mark has been put to genuine use in connection with the goods and services in respect of which it is registered; infringement of Article 76(1)(f) of the said regulation as the Board of Appeal erred in not taking into account the affidavit of the applicant's managing director; infringement of Article 74(2) of the said regulation and of Rul 22(1) and (2) of Commission Regulation No 2868/95 (1) as the further evidence submitted at the appeal's stage of the opposition proceedings is admissible and has to be taken into account when assessing the genuine use of the opposition mark; infringement of applicant's right to be heard as the Board of Appeal should have taken into account evidence of use submitted after the time limit.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 183/28

Action brought on 30 May 2008 — Antwerpse Bouwwerken v Commission

(Case T-195/08)

(2008/C 183/52)

Language of the case: Dutch

Parties

Applicant: Antwerpse Bouwwerken NV (Antwerp, Belgium) (represented by: J. Verbist and D. de Keuster, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul (i) the decision of 29 April 2008, notified by the Commission by letter of 29 April 2008, received by the applicant on 5 May 2008, by which the Commission informed the applicant that the latter's tender had been unsuccessful, as further explained in a letter from the European Commission of 6 May 2008 and received by the applicant on 8 May 2008, in which the Commission sets out its reasons for its rejection decision, and (ii) the decision of 23 April 2008 on the award of the contract, notified by the Commission by letter of 15 May 2008, received by the applicant on 16 May 2008;

— declare the Commission to be non-contractually liable for the damage suffered by the applicant, to be quantified at a later date;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant submitted a tender in response to the Commission's call for tenders for the construction of a reference materials production hall (1). Ultimately, the applicant's tender was not selected by the Commission.

The applicant relies in its application on an infringement of Article 91 of Regulation 1605/2002 (2) and of Articles 122, 138 and 148 of Regulation 2342/2002 (3) in conjunction with Articles 2 and 28 of Directive 2004/18/EC (4).

According to the applicant, it is apparent from the official records of selection of tenders that the successful tender did not comply with an essential tendering specification and that, consequently, it should have been rejected for failure to comply with the conditions of the contract. The intervention by the tenderer of the successful bid was not merely a case of the tender being clarified but of it being supplemented, which was not permissible at that stage of the procedure.

In addition, the decision on the award of the contract does not satisfy the principle of transparency, as essential elements of the assessment records, as provided to the applicant, have been rendered illegible.

(1) B-Geel: Construction of a reference materials production hall (2006/S 102-108785).

(2) 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).

(3) 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).

(4) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).
EN Official Journal of the European Union C 209/61

Action brought on 23 June 2008 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game)

(Case T-243/08)

(2008/C 209/110)

Language in which the application was lodged: English

Parties

Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger, lawyer, and R. Kunze, lawyer and Solicitor)

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

Other party to the proceedings before the Board of Appeal: Educa Borras SA (Sant Quirze del Valles, Barcelona, 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 8 April 2008 in case R 597/2007-2; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘EDUCA Memory game’ for goods in class 28 — Community trade mark registration No 495 036

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

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

Trade mark right of the party requesting the declaration of invalidity: The international word trade mark ‘MEMORY’ registration No R 393 512; the Benelux word trade mark ‘MEMORY’ registration No 38 328; the German word trade mark ‘MEMORY’ registration No 964 625

Decision of the Cancellation Division: Invalidity of the Community trade mark concerned

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: (i) infringement of Article 8(1) of Council Regulation No 40/94 as the Board of Appeal erred in concluding that the potentially colliding element in the Community trade mark concerned is of purely descriptive nature and thus cannot cause a risk of confusion with the applicant's earlier trade marks; (ii) infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal erred in requiring that applicant prove a risk of confusion; (iii) infringement of Article 74 of Council Regulation No 40/94 as the Board of Appeal did not properly take into account the labelling practice of the relevant market; (iv) infringement of Article 75 of Council Regulation No 40/94 as the Board of Appeal failed to convene a hearing, as requested by the applicant.