ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 272/47

Action brought on 29 August 2008 — 2nine v OHIM — Pacific Sunwear of California (nollie)

(Case T-363/08)

(2008/C 272/91)

Language in which the application was lodged: English

Parties

Applicant: 2nine Ltd (London, United Kingdom) (represented by: S. Palmer, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Pacific Sunwear of California, Inc. (Anaheim, United States)

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 16 June 2008 in case R 1590/2007-2;

— Order the defendant to pay the costs; and

— Take any further action as the Court may deem appropriate.

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 ‘nollie’ for goods and services in classes 3, 9, 11, 14, 18, 20, 25 and 26 — application No 4 602 017

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

Mark or sign cited: International trade mark registration No 839 740 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25; United Kingdom trade mark registration No 2 361 525 of the word mark ‘NOLI’ for goods in classes 3, 18, 24 and 25.

Decision of the Opposition Division: Allowed the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal failed to find that there is a likelihood of confusion between the conflicting trade marks with respect to all the contested goods; infringement of Article 74(1) of Council Regulation No 40/94 as the Board of Appeal failed or neglected to take into account properly the facts, evidence and arguments submitted.
EN Official Journal of the European Union C 272/38

Action brought on 12 August 2008 — AJD Tuna v Commission

(Case T-329/08)

(2008/C 272/77)

Language of the case: Italian

Parties

Applicant: AJD Tuna (Mosta Road, Malta) (represented by: M. Annoni, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longtitude 45° W, and in the Mediterranean Sea, with reference, in particular, to Article 3 of that regulation.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c. v Commission. In particular, it is submitted that the principle of legitimate expectation has been infringed, in so far as the Community legislation on fishing for bluefin tuna gave rise to a reasonably founded expectation on the part of the applicant that its fish farming and fattening activities were lawful.
EN Official Journal of the European Union C 272/41

Action brought on 18 August 2008 — Batchelor v Commission

(Case T-342/08)

(2008/C 272/82)

Language of the case: English

Parties

Applicant: Edward William Batchelor (Brussels, Belgium) (represented by: F. Young, Solicitor, A. Barav, Barrister and D. Reymond, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the implied negative decision deemed, pursuant to Article 8(3) of the Access Regulation, to have been made by the European Commission on 11 June 2008, the express negative decision SG/E/3/HP/cr D(2008)5545, made by the Commission on 3 July 2008, and the express negative decision SG/E/3/EV/psi D(2008)6636, made by the Commission on 7 August 2008, relating to a request for access to documents presented pursuant to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43);

— Order the Commission to pay its own costs and the applicant's costs in relation to these proceedings.

Pleas in law and main arguments

This application for annulment, pursuant to Article 230(4), is brought against the Commission's implied negative decision of 11 June 2008 and express negative decisions, SG/E/3/HP/cr D(2008)5545 of 3 July 2008 and SG/E/3/EV/psi D(2008)6636 of 7 August 2008, made pursuant to Regulation (EC) No 1049/2001 (1) (‘the Access Regulation’) by which the Commission rejected the applicant's request for access to documents the Commission sent to, and received from, the Belgian authorities, relating to the notification of measures taken under Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (2), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (3).

The applicant claims that the Commission's failure to provide adequate and sufficient reasons for denying access to the documents requested, amounts to a violation of Article 253 EC and Article 8(1) of the Access Regulation and that, consequently, the contested decision is vitiated by an infringement of an essential procedural requirement, as envisaged in Article 230(2) EC.

The applicant further submits that, in wrongly relying on the permissible exceptions for denying access to the documents requested, the Commission has violated Article 255 EC and Articles 1(a), 2(1) and (3), 4(1) to (6) of the Access Regulation and that, consequently, the contested decision is vitiated by an infringement of the Treaty and of any rule of law relating to its application, as envisaged in Article 230(2) EC.

(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) OJ 1989 L 298, p. 23.

(3) OJ 1997 L 202, p. 60.
EN Official Journal of the European Union C 301/45

Action brought on 5 September 2008 — Csepeli Áramtermelő v Commission

(Case T-370/08)

(2008/C 301/76)

Language of the case: English

Parties

Applicant: Csepeli Áramtermelő kft (Budapest, Hungary) (represented by: Á. Máttyus, K. Ferenczi, B. van de Walle de Ghelcke, T. Franchoo, and D. Fessenko, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision in so far as it identifies Csepel as a beneficiary of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Hungary to recover this alleged State aid, including interest, from Csepel; and

— To order the Commission to pay the costs.

Pleas in law and main arguments

The applicant requests the annulment of Commission Decision C(2008) 2223 final, of 4 June 2008 (Case C-41/2005 — Hungarian stranded costs), in so far as it identifies the applicant as a beneficiary of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Hungary to recover the alleged State aid, including interest, from the applicant.

The applicant claims that the Commission failed to evidence and appropriately justify its conclusion that the power purchase agreement (‘PPA’) concluded between the applicant — owner of a power generation facility in Hungary ultimately acquired by Atel AG — and the Hungarian state-owned electricity wholesaler, Magyar Villamos Muvek Rt. (‘MVM’), constitutes incompatible State aid. In support of its claims, the applicant raises the following pleas in law:

In its first plea, the applicant submits that the Commission infringed Article 253 EC and Article 87(1) EC by failing to state reasons and by making a manifest error of assessment in finding that the applicant's PPA conferred an economic advantage to the applicant.

In its second plea, the applicant submits that the Commission committed a manifest error of assessment in concluding that the applicant's PPA distorts competition.

In its third plea, the applicant contends that the Commission infringed the principles of proportionality and equal treatment, in that the recovery obligation is unjustified in the specific circumstances of the case on the basis of general principles of Community law. In addition, the applicant claims that the Commission made a manifest error of assessment regarding the methodology that it applied in order to calculate the amounts to be recovered.
EN Official Journal of the European Union C 313/39

Action brought on 29 September 2008 — AKKA/LAA v Commission

(Case T-414/08)

(2008/C 313/71)

Language of the case: English

Parties

Applicant: Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība (AKKA/LAA) (Riga, Latvia) (represented by: M. Favart, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 3 of the Commission Decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment of Article 3 of Commission Decision C(2008) 3435 of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38698 — CISAC) alleging that 24 of CISAC's (1) EEA based societies, including the applicant, engaged in a concerted practice ‘by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society’.

The main pleas and arguments are similar or identical to those raised in Case T-413/08.

(1) Refers to the International Confederation of Societies of Authors and Composers (‘CISAC’).
EN Official Journal of the European Union C 301/45

Appeal brought on 8 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-5/07 Nijs v Court of Auditors

(Case T-371/08 P)

(2008/C 301/77)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors of the European Communities

Form of order sought by the appellant

— Declare the appeal admissible;

— Declare the appeal well-founded;

— Consequently, annul the order of 26 June 2008 in Case F-5/07 Bart Nijs v Court of Auditors of the European Communities.

Pleas in law and main arguments

The applicant claims that the Civil Service Tribunal's order is vitiated by a manifest error in the assessment of procedural provisions inasmuch as it regards the action as inadmissible by reason of a failure to comply with the requirements of clarity, an infringement of the principle of the protection of legitimate expectations and an erroneous application of the presumption of legality to the defendant's contentions inasmuch as the order was made after a single exchange of written pleadings.

In addition, the applicant considers that the contested order is lacking in clarity, is unsupported by evidence, is vitiated by a manifest error in the consideration of the pleas in law raised in the application and does not consider certain matters which the Tribunal should have considered of its own motion.

The applicant also claims that the contested order should have taken account of the lack of a statement of reasons at the pre-litigation stage and that it was wrongly based on a failure to comply with time-limits, inasmuch as the Tribunal had not carried out a suficient investigation to reach that conclusion.
EN Official Journal of the European Union C 313/52

Action brought on 2 October 2008 — Stim v Commission

(Case T-451/08)

(2008/C 313/93)

Language of the case: English

Parties

Applicant: Föreningen Svenska Tonsättares Internationella Musikbyrå (Stim) u.p.a. (Stockholm, Sweden) (represented by: C. Thomas, Solicitor and N. Pourbaix, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Articles 3 and 4(2), and Article 4(3) to the extent that it refers to Article 3, of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA in case COMP/C2/38.698 — CISAC;

— Order the Commission to pay the applicant's costs.

Pleas in law and main arguments

By means of its application the applicant seeks partial annulment of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 — CISAC) and in particular, of its Article 3, determining that the EEA CISAC (1) members engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society.

In support of its claims the applicant submits the following:

According to the applicant the contested decision infringes Article 151(4) EC in that the Commission did not sufficiently take into account the consequences for cultural diversity in Europe in requiring termination of the alleged concerted practice on the territorial delineation of mandates granted by EEA collecting societies to other EEA collecting societies to issue licences of their repertoire for satellite, cable and internet use. Moreover, the applicant claims that the decision will harm cultural diversity in Europe, since authors of music of a less extensive cultural appeal will lose the certainty they have under the current system, that their music will be licensed and that revenues will be received in respect of all the territories in which their music may be performed.

The applicant further submits that the Commission should have taken into account the fact that the restriction of competition it identified is fictitious or, at most, marginal. In deed, in the applicant's submission, there is no restriction of competition within the meaning of Article 81(1) EC. Hence, the applicant claims that the Commission committed an error of law, or a manifest error of appreciation, when applying the aforementioned provision. Finally, the applicant contends that the Commission could have lawfully exempted the concerted practice pursuant to Article 81(3) EC. By not doing so, it needlessly caused harm to cultural diversity in Europe.

(1) International Confederation of Societies of Authors and Composers.
EN Official Journal of the European Union C 327/40

Action brought on 4 November 2008 — Media-Saturn v OHIM (BEST BUY)

(Case T-476/08)

(2008/C 327/71)

Language of the case: German

Parties

Applicant: Medai-Saturn-Holding GmbH (Ingolstadt, Germany) (represented by K. Lewinsky, 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 28 August 2008 in appeal proceedings R 0591/2008-4; and

— Order OHIM to pay the costs of these proceedings and the costs incurred before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark ‘Best Buy’ for goods and services in Classes 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 22, 27, 28, 35, 37, 38, 40, 41 and 42 (No 5 189 550).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1) in that the trade mark applied for has the necessary minimum distinctive character.

(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 313/50

Action brought on 29 September 2008 — FIFA v OHIM — Ferrero (WM 2006)

(Case T-446/08)

(2008/C 313/90)

Language in which the application was lodged: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: D. Alexander QC, A. Barav, Barrister, R. Buchel and C. Rassmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ferrero OHG mbH (Stadtallendorf, Germany)

Form of order sought

— Annul, in whole or in part, the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 1468/2005-1; 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 word mark ‘WM 2006’ for goods and services in classes 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 — Community trade mark registration No 2 155 521

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

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

Pleas in law: (i) Infringement of Article 73 and 74(1) of Council Regulation No 40/94 in so far as the Board of Appeal has based, largely, its decision on Article 7(1)(c) of Council Regulation No 40/94, a provision which was neither invoked by the other party to the proceedings before the Board of Appeal, nor relied upon by the Cancellation Division; (ii) Alternatively, infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal failed to consider the registered Community trade mark subject of the application for a declaration of invalidity as a whole, through the eyes of the average consumer and to apply the relevant law relating to the assessment of descriptiveness of the goods and/or services applied for; and (iii) Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of the necessary distinctive character; and (iv) Infringement of Articles 7(3) and 51(2) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the registered Community trade mark subject of the application for a declaration of invalidity had not acquired a distinctive character for services in class 41.
EN Official Journal of the European Union C 32/38

Action brought on 11 November 2008 — Longevity Health Products v OHIM — Merck (Kids Vits)

(Case T-484/08)

(2009/C 32/75)

Language in which the application was lodged: German

Parties

Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, 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: Merck KGaA (Darmstadt, Germany)

Form of order sought

— Declare the action brought by Longevity Health Products, Inc. admissible;

— annul the decision of the Fourth Board of Appeal of 28 August 2008 and dismiss the nullity proceedings of Merck KGaA against registration of Community trade mark 003 979 143; and

— order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kids Vits’ for goods and services in Classes 3, 5 and 35 (Community trade mark No 3 979 143).

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

Mark or sign cited in opposition: Word mark ‘VIDS4KIDS’ for goods in Class 5 (mark No 3 128 196).

Decision of the Opposition Division: Upholding of the opposition.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

(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 19/32

Action brought on 14 November 2008 — Galileo International Technology v OHIM — GALILEO SISTEMAS Y SERVICIOS (GSS GALILEO SISTEMAS Y SERVICIOS)

(Case T-488/08)

(2009/C 19/61)

Language in which the application was lodged: English

Parties

Applicant: Galileo International Technology LLC (Bridgetown, Barbados) (represented by: S. Malynicz, Barrister, K. Gilbert and M. Blair, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Galileo Sistemas y Servicios, SL (Tres Cantos, 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 28 August 2008 in case R 403/2006-4; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear their own costs and those incurred by the applicant.

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 ‘GSS GALILEO SISTEMAS Y SERVICIOS’, for goods and services in classes 9 and 38.

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

Mark or sign cited: Community trade mark application No 170 167 of the word mark ‘GALILEO’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2 157 501 of the word mark ‘GALILEO’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 516 799 of the figurative mark ‘powered by Galileo’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 330 084 of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2 159 069 of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Earlier signs protected in various Member States namely, a non-registered trade mark, a trade name, and a sign, all used in the course of trade for the specified goods and services.

Decision of the Opposition Division: Upheld the opposition against the contested goods and services

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as: (i) the Board of Appeal failed to carry out a global assessment of the Community trade mark concerned in relation to the word only trade marks for ‘GALILEO’; (ii) the Board of Appeal erred in its assessment of the Community trade mark concerned in relation to the earlier composite trade marks containing the word ‘GALILEO’; and (iii) the Board of Appeal erred in its assessment of the similarity of the goods; Infringement of Article 63(2) of Council Regulation 40/94 as the Board of Appeal failed to remit the case back to the Opposition Division for a finding under Articles 8(4) and 8(5) of Council Regulation 40/94.