ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 165/27

Action brought on 30 March 2012 — Aventis Pharmaceuticals v OHIM — Fasel (CULTRA)

(Case T-142/12)

2012/C 165/47

Language in which the application was lodged: English

Parties

Applicant: Aventis Pharmaceuticals, Inc. (New Jersey, United States) (represented by: R. Gilbey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fasel Srl (Bologna, Italy)

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 26 January 2012 in case R 2478/2010-1;

— The Court is invited to provide its opinion and reasons, as regards the similarity of signs, had the correct facts and tests been applied by the Board of Appeal; and

— Order the losing party to pay the costs incurred by the applicant in the present proceedings and in the previous proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘CULTRA’, for goods in class 10 — Community trade mark application No 7534035

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

Mark or sign cited in opposition: Czech trade mark registration No 301724 of the word mark ‘SCULPTRA’, for goods and services in classes 5, 10 and 44; German trade mark registration No 30406574 of the word mark ‘SCULPTRA’, for goods and services in classes 5, 10 and 44; Finish trade mark registration No 233638 of the word mark ‘SCULPTRA’, for goods and services in classes 5, 10 and 44; UK trade mark registration No 2355273 of the word mark ‘SCULPTRA’, for goods and services in classes 5, 10 and 44; Hungarian trade mark registration No 183214 of the word mark ‘SCULPTRA’, for goods and services in classes 5, 10 and 44

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 50 of Commission Regulation No 2868/95 and Article 76(2) of Council Regulation No 207/2009, as the Board of Appeal: (i) based its reasoning and decision on a fact that was not alleged or submitted by the parties, nor referred to in the contested decision, namely that the contested sign will primarily or exclusively be perceived as ‘ULTRA’ with a rounded figurative element; (ii) failed to address important arguments and evidence submitted by the applicant, regarding conceptual similarity, failed to compare correctly the signs with regard to their overall impression, and failed accordingly to apply the global comparison rule, as defined by the Court of Justice; (iii) failed to proceed to an evaluation of likelihood of confusion based on the sole facts that were placed before it; and (iv) failed to take into account in a legally sustainable manner the interdependence of relevant global factors, in particular, the identity or similarity of the goods and services, and the similarity between the signs.
EN Official Journal of the European Union C 165/24

Action brought on 23 March 2012 — Scooters India v OHIM — Brandconcern (LAMBRETTA)

(Case T-132/12)

2012/C 165/42

Language in which the application was lodged: English

Parties

Applicant: Scooters India Ltd (Sarojini Nagar, India) (represented by: B. Brandreth, Barrister)

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

Other party to the proceedings before the Board of Appeal: Brandconcern BV (Amsterdam, Netherlands)

Form of order sought

— Annul the part of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2012 in case R 2308/2010-1, in which the applicant’s appeal against the revocation of the mark in respect of its registration for goods in class 6 and 7 was dismissed; and

— Order the defendant to pay the applicant its costs incurred before the Board of Appeal and the General Court of the European Union.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been sought: The word mark ‘LAMBRETTA’, for goods in classes 6, 7 and 28 — Community trade mark registration No 1618982

Proprietor of the Community trade mark: The applicant

Party applying for revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

Grounds for the application for revocation: The party grounded its request pursuant to Article 51(1)(a) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Revoked the CTM registration

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: It is submitted that the Board of Appeal erred in three respects in its assessment of the evidence under Article 51(1)(c). Had the Board of Appeal correctly applied the authorities in Case T-415/09 Vallis v New Yorker and/or La Mer Technology Inc v Laboratoires Goemar SA (Case C-259/02) and/or reviewed the evidence it would have held that there was genuine use of goods in classes 6 and 7 with the consent of SIL.
EN Official Journal of the European Union C 184/15

Action brought on 5 April 2012 — European Dynamics Belgium and Others v European Medicines Agency

(Case T-158/12)

2012/C 184/28

Language of the case: Greek

Parties

Applicants: European Dynamics Belgium SA (Brussels, Belgium) European Dynamics Luxembourg SA (Ettelbrück, Luxembourg), Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece) and European Dynamics UK Ltd (London, United Kingdom) (represented by: V Christianos, lawyer)

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the General Court should:

— annul the European Medicines Agency (‘ΕΜΑ’) decision ΕΜΑ/67882/2012 of 31 January 2012, whereby the ΕΜΑ placed the applicants’ tender in second place in the open tendering procedure ΕΜΑ/2011/17/ICT, which related to its Lot 1;·

— order the ΕΜΑ to pay compensation to the applicants for the loss of opportunity which the first priority framework contract would have brought, which they estimate at EUR 2 139 471,70, with interest from the date of delivery of the judgment and

— Order the ΕΜΑ to pay the entirety of the applicants’ costs.

Pleas in law and main arguments

By this action, the applicants seek the annulment of the ΕΜΑ decision of 31 January 2012, whereby the ΕΜΑ placed the applicants’ tender in second place in the open tendering procedure ΕΜΑ/2011/17/ICT, which related to its Lot 1, and the payment of compensation to the applicants for the loss of opportunity which first place in the open tendering procedure ΕΜΑ/2011/17/ICT would have brought.

The applicants claim that the contested decision should be annulled, in accordance with Article 263 TFEU, because of contravention of the rules of European Union law and, in particular, on the following three grounds:

1. First, the ΕΜΑ, contrary to the Financial regulation, its implementing regulation and the technical specifications dossier, added at the stage of presentation the condition that the tenderers’ external collaborators be present, in order that they could be assessed, which was not referred to in the initial competition contract documents and, consequently, was a new award criterion.

2. Second, the ΕΜΑ, contrary to the implementing regulation, assessed and attributed scores to the experience of the tenderers, which had already been examined as a qualitative selection criterion, at the stage of the award procedure.
2.

Second plea in law, alleging that the contested act either de jure or de facto will impose a residence requirement on central counterparty clearing systems (‘CCPs’) that wish to undertake clearing or settlement operations in the Euro currency whose daily trades exceed a certain volume. The contested act infringes all or any of Articles 48, 56 and/or 63 TFEU, in that: — CCPs established in non-Euro area Member States, such as the United Kingdom, will be obliged to relocate their centres of administration and control to Member States which are members of the Eurosystem. They will also be obliged to re-incorporate as legal persons recognised in the domestic law of another Member State; — in the event that such CCPs do not relocate as required, they will be precluded from access to the financial markets in the Eurosystem Member States, either on the same terms as CCPs established in those territories, or at all; — such non-resident CCPs will not be entitled to facilities offered by the ECB or the National Central Banks (‘NCBs’) of the Eurosystem, either on the same terms, or at all; and — as a result, the ability of such CCPs to offer clearing or settlement services in the Euro currency to customers in the Union will be restricted or even prohibited in its entirety.
EN Official Journal of the European Union C 109/19

Action brought on 27 January 2012 — Intesa Sanpaolo v OHIM — equinet Bank (EQUITER)

(Case T-47/12)

2012/C 109/42

Language in which the application was lodged: English

Parties

Applicant: Intesa Sanpaolo SpA (Torino, Italy) (represented by: P. Pozzi, G. Ghisletti and F. Braga, lawyers)

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

Other party to the proceedings before the Board of Appeal: equinet Bank AG (Frankfurt am Main, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 October 2011 in case R 2101/2010-1;

— Order the Office to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘EQUITER’, for goods and services in classes 9, 16, 35, 36, 38, 41 and 42 — Community trade mark application No 66707749

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 1600816 of the word mark ‘EQUINET’, for services in classes 35, 36 and 38; German trade mark registration No 39962727 of the word mark ‘EQUINET’, for goods and services in classes 9, 35, 36 and 38

Decision of the Opposition Division: Rejected the opposition

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

Pleas in law: Infringement of Articles 42(2) and (3) in conjunction with Article 15(1)(a) of Council Regulation No 207/2009, as the Board of Appeal made a wrong assessment concerning the material submitted in support of the use of the mark, as: (i) there are no sufficient indications on activity, time, place and extent of use of the mark; (ii) there is no sufficient indication concerning the nature of use of the trademark; and (iii) the evidence furnished by the opponent is insufficient to prove that the earlier trade mark was genuinely used in the relevant territory during the period of five years preceding the date of publication of the contested mark.
EN Official Journal of the European Union C 184/18

Action brought on 12 April 2012 — Peri v OHIM (Shape of a turnbuckle)

(Case T-171/12)

2012/C 184/32

Language of the case: German

Parties

Applicant: Peri GmbH (Weißenhorn, Germany) (represented by J. Dönch, 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 26 January 2012 in Case R 1209/2011-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark in the shape of a turnbuckle, for goods in Classes 6 and 19 — application No 9 462 078

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) and (e)(i) and (ii) of Regulation No 207/2009
—

Order the Council of the European Union to pay the costs under Articles 87 and 91 of the Rules of Procedure of the General Court
EN Official Journal of the European Union C 109/16

Action brought on 23 January 2012 — Région Poitou-Charentes v Commission

(Case T-31/12)

2012/C 109/37

Language of the case: French

Parties

Applicant: Région Poitou-Charentes (Poitiers, France) (represented by: J. Capiaux, lawyer)

Defendant: European Commission

Form of order sought

— Annul the European Commission decision of 18 November 2011 refusing to close the Community initiative programme INTERREG III B ‘Atlantic Area’ 2000/2006 (reference CCI No 2001 RG 16 0 PC 006) adopted by the European Commission.

Pleas in law and main arguments

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

1. First plea in law, alleging the unlawfulness of the Commission decision, in so far as the signatory of the measure was not entitled to a delegated right of signature.

2. Second plea in law, alleging disregard of essential procedural requirements, the Commission not being compliant with the mandatory time-limit imposed by Article 37(1) of Regulation No 1260/1999 (1) for stating its reasons why the applicant's final report was unsatisfactory.

3. Third plea in law, alleging errors of law: — the Commission having alleged that the applicant did not comply with the rules concerning approval of the final report, whereas the rules of the monitoring committee provided for a scheme of implicit approval of that report at the expiry of a six day time-limit; and — the Commission having stated that the applicant’s report should have been drafted in English, whereas there is no rule requiring that a report be drafted in a language other than that of the managing authority (in this case French) in order to be valid.

4. Fourth plea in law, alleging inadequate reasons for the contested decision.

5. Fifth plea in law, alleging an abuse of power, the Commission having taken into account a ground which by its nature is extraneous to European interests in order to refuse to close the initiative programme in question.

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).
EN Official Journal of the European Union C 184/19

Action brought on 20 April 2012 — Wirtgen v OHIM (Shape of a chisel holder)

(Case T-179/12)

2012/C 184/34

Language of the case: German

Parties

Applicant: Wirtgen GmbH (Windhagen, Germany) (represented by S. Jackermeier, 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 decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2012 in Case R 1923/2011-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark in the form of a chisel holder for goods in Class 7 — application No 9 749 631

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 37(3), the second sentence of Article 75, Article 63(2), the first part of Article 76(1) and Article 77(1) of Regulation No 207/2009 and infringement of Article 7(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 209/7

Action brought on 30 April 2012 — Roland v OHIM — Textiles Well (wellness inspired by nature)

(Case T-191/12)

2012/C 209/12

Language in which the application was lodged: English

Parties

Applicant: Roland SE (Essen, Germany) (represented by: O. Rauscher and C. Onken, lawyers)

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

Other party to the proceedings before the Board of Appeal: Textiles Well SA (Le Vigan, France)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2012 in case R 2552/2010-1;

— Reject the Opposition No 1299967; and

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the other party to the proceedings before the Board of Appeal to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The international figurative mark ‘wellness inspired by nature’, for goods in class 25 — Community trade mark application No W00924808

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 527630 of the word mark ‘WELL’, for goods in class 25; French trade mark registration No 99804486 of the word mark ‘WELLNESS’, for goods in class 25

Decision of the Opposition Division: Upheld the opposition and refused protection to the international registration for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 126/24

Action brought on 7 March 2012 — Spain v Commission

(Case T-111/12)

2012/C 126/46

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul Commission Decision C(2011) 9990 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to the following projects: ‘Management of waste by the Autonomous Community of Extremadura — 2001’ (CCI No 2001.ES.16.C.PE.043); ‘Drainage and water supply in the Douro river basin — 2001’ (CCI No 2000.ES.16.C.PE.070); ‘Management of Waste by the Autonomous Community of Valencia — 2011 — Group II’ (CCI No 2001.ES.16.C.PE.026); and ‘Waste-water disposal and treatment in Bierzo Bajo’ (CCI No. 2000.ES.16.C.PE.036);

— order the European Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on pleas in law essentially identical to those already raised in Case T-109/12 Spain v Commission.

The applicant alleges, in particular, a failure to state reasons with regard to the application of the principle of proportionality under Article H.2 of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130 p. 1), since the Commission simply referred to the document ‘Guidelines for determining financial corrections to [be made to expenditure cofinanced by the structural funds or the cohesion fund for non-compliance with the rules on] public procurement’ — presented to the Member States at the Coordination Committee of the Funds of 28 November 2007 — even though that document does not analyse the reasons which could justify setting the flat-rate correction percentages set out therein.
EN Official Journal of the European Union C 209/10

Action brought on 16 May 2012 — GRE v OHIM — Villiger Söhne (LIBERTE american blend)

(Case T-205/12)

2012/C 209/17

Language in which the application was lodged: German

Parties

Applicant: GRE Grand River Enterprises Deutschland GmbH (Kloster Lehnin, Germany) (represented by: I. Memmler and S. Schulz, lawyers)

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

Other party to the proceedings before the Board of Appeal: Villiger Söhne GmbH (Waldshut-Tiengen, Germany)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in Case R 387/2011-1;

— order the defendant 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 ‘LIBERTE american blend’ for goods in Class 34 — application No 7 481 211

Proprietor of the mark or sign cited in the opposition proceedings: Villiger Söhne GmbH

Mark or sign cited in opposition: the word mark ‘LA LIBERTAD’ and the figurative mark ‘La LIBERTAD’ for goods in Classes 14 and 34

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 138/18

Action brought on 14 March 2012 — ANKO v Commission

(Case T-117/12)

2012/C 138/35

Language of the case: Greek

Parties

Applicant: ANKO Anonimos Etairia Antiprosopion, Emporiou kai Viomikhanias (Athens, Greece) (represented by: V. Khristianos, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— declare that the suspension of payment which the European Commission has imposed in respect of the sums which it owes the applicant for the PERFORM and OASIS projects constitutes a breach of its contractual obligations;

— require the Commission to pay to the applicant the sum of EUR 637 117,17 in respect of the PERFORM project, together with the interest provided for by paragraph 5 of Clause II.5 of Annex II to the principal contract from service of the present action;

— require the Commission to acknowledge that the applicant does not have to return the sum of EUR 56 390,00 which it paid to the applicant in respect of the OASIS project;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action concerns liability of the Commission under (a) contract No 215952 for the carrying out of the project ‘A soPhisticatEd multi-paRametric system FOR the continuous effective assessment and Monitoring of motor status in Parkinson’s disease and other neurodegenerative diseases (PERFORM)’ and (b) contract No 215754 for the carrying out of the project ‘Open architecture for Accessible Services Integration and Standardisation (OASIS)’, pursuant to Article 272 TFEU.

Specifically, the applicant submits that, although it duly performed its contractual obligations in full, the Commission suspended the payments to the applicant without being entitled to do so and in breach of the foregoing contracts and of the principle of good faith. For that reason, the applicant submits, first, that the Commission must be obliged to pay to it the sum of EUR 637 117,17 in respect of the PERFORM project, together with the interest provided for by paragraph 5 of Clause II.5 of Annex II to the principal contract, and second, that it must be acknowledged that the applicant does not have to return the sum of EUR 56 390,00 which it received in respect of the OASIS project.