ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 209/8

Action brought on 30 April 2012 — Advance Magazine Publishers v OHIM — Bauer Consumer Media (GOLF WORLD)

(Case T-194/12)

2012/C 209/13

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: R. Hacon, Barrister)

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

Other party to the proceedings before the Board of Appeal: Bauer Consumer Media Ltd (Peterborough, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 February 2012 in case R 239/2011-1;

— Refuse the application in suit for all goods and services for which it was published for opposition;

— Alternatively, the evidence of use be deemed sufficient and the opposition be remitted to the Opposition Division to determine the issue of the conflict between the marks in question; and

— Award to the opponent its costs in the opposition proceedings, the proceedings before the Board of Appeal and in this appeal and that the appeal fees be refunded.

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 ‘GOLF WORLD’, for goods and services in classes 9, 16, 35, 38 and 41 — Community trade mark application No 7070147

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

Mark or sign cited in opposition: Benelux trade mark registration No 465586 of the word mark ‘GOLF WORLD’, for goods in class 16; Danish trade mark registration No 541/1991 of the word mark ‘GOLF WORLD’, for goods in class 16; French trade mark registration No 1551025 of the word mark ‘GOLF WORLD’, for goods in class 16; Greek trade mark registration No 96430 of the word mark ‘GOLF WORLD’, for goods in class 16; Italian trade mark registration No 575282 of the word mark ‘GOLF WORLD’, for goods in class 16; Spanish trade mark registration No 1308477 of the word mark ‘GOLF WORLD’, for goods in class 16; Swedish trade mark registration No 229611 of the word mark ‘GOLF WORLD’, for goods in class 16; Portuguese trade mark registration No 259281 of the word mark ‘GOLF WORLD’, for goods in class 16; Irish trade mark registration No 113474 of the word mark ‘GOLF WORLD’, for goods in class 16

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 42 of Council Regulation No 207/2009.
EN Official Journal of the European Union C 209/11

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

(Case T-206/12)

2012/C 209/18

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 411/2011-1;

— 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 7 481 328

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 209/9

Action brought on 9 May 2012 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METRO)

(Case T-197/12)

2012/C 209/15

Language in which the application was lodged: English

Parties

Applicant: Metropolis Inmobiliarias y Restauraciones, SL (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

Form of order sought

— Modify 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 2440/2010-1;

— Subsidiary and only in the case the former claim would be rejected, 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 2440/2010-1;

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

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, in colours ‘METRO’, for amongst others services in class 36 — Community trade mark application No 7585045

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

Mark or sign cited in opposition: Community trade mark registration No 7111974 of the figurative mark in colours ‘GRUPOMETROPOLIS’, for services in class 36

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Infringement of Articles 75 and 76 of Council Regulation No 207/2009; and Infringement of Article 8(1)(b) of Council Regulation No 207/2009
EN Official Journal of the European Union C 273/10

Action brought on 22 May 2012 — MPM-Quality and Eutech v OHIM — Elton hodinářská (MANUFACTURE PRIM 1949)

(Case T-215/12)

2012/C 273/18

Language in which the application was lodged: Czech

Parties

Applicants: MPM-Quality v.o.s. (Frýdek-Místek, Czech Republic) and Eutech akciová společnost (Šternberk, Czech Republic) (represented by: M. Kyjovský, lawyer)

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

Other party to the proceedings before the Board of Appeal: Elton hodinářská, a.s.

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 5 March 2012 in Case R 826/2010-4,

— 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: Composite trade mark ‘MANUFACTURE PRIM 1949’ no 3531662 for goods and services in classes 9, 14 and 35

Proprietor of the Community trade mark: Elton hodinářská, a.s.

Applicant for the declaration of invalidity of the Community trade mark: The applicants

Grounds for the application for a declaration of invalidity: Application on the basis of Article 51(1)(b) in conjunction with Article 8(1)(a) and (b) and Article 8(5) of Council Regulation (EC) No 207/2009, and on the basis of Article 52(1)(b) of that regulation

Decision of the Cancellation Division: Application dismissed

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The applicants submit that the Board of Appeal infringed Articles 8(1)(a) and (b), 8(5) and 52(1)(b) of Council Regulation (EC) No 207/2009 (‘the Regulation’) in that it:

— proceeded from an incorrect interpretation of the burden of argument and proof under Articles 54 and 165(4) of the Regulation;

— incorrectly applied the case-law of the Court of Justice;

— did not take account of the substantial exploitation, well-known character and use of the international trade mark, which are important for the perception of the sign PRIM by the relevant consumers;

— incorrectly applied Article 55 in relation to Article 41 of the Regulation by asserting that the earlier rights to the sign must belong to the same owner;

— did not express a view on the facts put forward by the applicants and the evidence submitted by them, did not accord that evidence its significance, and did not deal at all with some of it (e.g. the licence agreements);
EN Official Journal of the European Union C 243/25

Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW)

(Case T-246/12)

2012/C 243/44

Language in which the application was lodged: English

Parties

Applicant: Cat Media Pty Ltd (Warriewood, Australia) (represented by: I. De Freitas, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Avon Products, Inc. (New York, United States)

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 21 March 2012 in case R 740/2011-1;

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the appellant’s costs in relation to these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘RETANEW’, for goods in class 3 — Community trade mark application No W00884450

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 3531051 of the word mark ‘ANEW’ for goods in classes 3 and 5

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

Decision of the Board of Appeal: Annulled the contested decision and refused the application in its entirety

Pleas in law:
EN Official Journal of the European Union C 243/23

Action brought on 29 May 2012 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle)

(Case T-235/12)

2012/C 243/41

Language in which the application was lodged: English

Parties

Applicant: CEDC International sp. z o.o. (Warsaw, Poland) (represented by: M. Siciarek, lawyer)

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

Other party to the proceedings before the Board of Appeal: Underberg AG (Dietlikon, Suisse)

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 26 March 2012 in case R 2506/2010-4;

— Order OHIM to bear the costs of the proceedings at hand.

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 with the description ‘the object of the trade mark is a greeny-brown blade of grass in a bottle, the length of the blade of grass is approximately three-quarters the height of the bottle’, for goods in class 33 — Community trade mark application No 33266

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

Mark or sign cited in opposition: French trade mark registration No 95588457 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; German trade mark registration No 39848553; Polish trade mark registration No 62018; Polish trade mark registration No 62081 for goods in class 33; Polish trade mark registration No 85811 for goods in class 33; Japanese trade mark registration No 2092826 for goods in class 28; French trade mark registration No 98746752 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; Non-registered trade mark used in the course of trade in Germany in connection with ‘vodka’

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 the principle of legality;
—

In the alternative: — insofar as the Court upholds the first and/or the second plea made by the applicants, modify Articles 2(2), 2(3) and 2(4) of the Decision as they pertain to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; — insofar as the Court upholds the applicants’ third plea, annul or modify Article 1(2)(f) of the Decision to reflect the reduced duration of the infringement, and consequentially modify Article 2(2) of the Decision as it pertains to the applicants, so as to annul or reduce the fine imposed on the applicants therein; and — insofar as the Court upholds the applicants’ fourth plea, modify Articles 2(2), 2(3) and 2(4) of the Decision as it pertains to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; and, in any event;
1.

First, in its findings the defendant breached the principles of the burden of proof (Article 2 of Regulation No 1/2003), the standard of proof and the obligation to state the reasons for its decision. In particular, the defendant failed to demonstrate sufficiently the existence of any alleged ‘signal effects’ on all mounting technologies and materials throughout the entire European Economic Area (EEA) of German prices for ‘turn-and-tilt’ systems, and thereby unlawfully reduced the burden of proof on the defendant.
—

the adoption of a permitted list of general function health claims while keeping certain claims under the transitional measures of Article 28 of Regulation (EC) No 1924/2006 (i.e. splitting the assessment process and adopting a partial list of claims under article 13(1)) lacks any legal basis. It further infringes the principles of good administration, legal certainty and non-discrimination for a number of reasons, including: there was no justification for the splitting of the process; the split lacked transparency; there was no consultation or adequate reasons given for the split; some claims are put ‘on-hold’ and continue to benefit from the existing transitional periods under Regulation (EC) No 1924/2006 (despite the legal uncertainty of those transitional periods).
EN Official Journal of the European Union C 273/12

Action brought on 22 June 2012 — Inter-Union Technohandel v OHIM — Gumersport Mediterranea de Distribuciones (PROFLEX)

(Case T-278/12)

2012/C 273/21

Language in which the application was lodged: English

Parties

Applicant: Inter-Union Technohandel GmbH (Landau in der Pfalz, Germany) (represented by: K. Schmidt-Hern and A. Feutlinske, lawyers)

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

Other party to the proceedings before the Board of Appeal: Gumersport Mediterranea de Distribuciones, SL (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 27 March 2012 in case R 413/2011-2; and

— Order OHIM to pay the costs of the applicant.

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 ‘PROFLEX’ for goods and service sin classes 9, 12 and 25

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

Mark or sign cited in opposition: German trade mark registration No 39628817 for the word mark ‘PROFEX’, for goods in classes 6, 8, 9, 11, 12, 16, 17 and 21

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition entirely

Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation (EC) No 207/2009 and Rule 22 of Commission Regulation (EC) no 2868/95.
EN Official Journal of the European Union C 295/26

Action brought on 19 July 2012 — Knauf Insulation Technology v OHIM — Saint Gobain Cristaleria (ECOSE)

(Case T-323/12)

2012/C 295/46

Language in which the application was lodged: English

Parties

Applicant: Knauf Insulation Technology (Visé, Belgium) (represented by: K. Manhaeve, lawyer)

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

Other party to the proceedings before the Board of Appeal: Saint Gobain Cristaleria, SL (Madrid, Spain)

Form of order sought

— Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 17 April 2012 in case R 259/2011-5 insofar as it has declared the opponent’s opposition successful against the CTM application for part of the goods and services applied for;

— Order the defendant and — if applicable — the Opponent to jointly and severally pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ECOSE’, for goods and services in classes 1, 2, 3, 16, 17, 19, 20 and 40 — Community trade mark application No W00993849

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Spanish trade mark registration No 2556409 of the word mark ‘ECOSEC FACHADAS’, for goods in classes 17 and 19

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Partially annulled the contested decision and dismissed the appeal and confirmed the contested decision for the remainder

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009
Infringement of the duty to investigate and the extent of such an examination under Regulation (EC) No 1049/2001 (1)

The applicants claim that the Commission infringed the duty to investigate ‘exceptions’ under Article 4(2) of Regulation (EC) No 1049/2001 and the extent to which such an investigation is to be carried out.
EN Official Journal of the European Union C 303/22

Action brought on 25 July 2012 — Soltau v Commission

(Case T-333/12)

2012/C 303/43

Language of the case: German

Parties

Applicant: Christoff Soltau (Adendorf, Germany) (represented by: T. Rosenkranz, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the decision of the European Commission of 14 May 2012;

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant claims that the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) does not preclude him from accessing the Commission’s opinion, which the latter communicated to the Austrian Oberster Gerichtshof (Supreme Court) in accordance with Article 15(3) of Regulation (EC) No 1/2003 (2) in the context of a cartel case. In the applicant’s view, Article 4(2) does not apply to the document to which the applicant seeks access, since the proceedings before the Austrian court do not, in principle, fall within the scope of protection of that provision. Even if that were the case, the document in question would not fall within the scope of the provision, since the document was not communicated by the Commission as a party to the proceedings. Moreover, the Commission’s decision cannot be justified on the basis of protection of the proceedings in Case C-681/11 Schenker and Others, pending before the Court of Justice. Indeed, the reference for a preliminary ruling was made by the Austrian Oberster Gerichtshof in the context of the cartel case at issue; however, the document in question was neither issued by the Commission in the context of the proceedings for a preliminary ruling, nor does its content relate to the questions referred.

(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) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles (101) and (102) (TFEU) (OJ 2003 L 1, p. 1).
—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1453/2011-2, and rule that the appeal is justified; and
EN Official Journal of the European Union C 355/27

Action brought on 8 August 2012 — Harper Hygienics v OHIM — Clinique Laboratories (CLEANIC natural beauty)

(Case T-363/12)

2012/C 355/59

Language in which the application was lodged: Polish

Parties

Applicant: Harper Hygienics S.A. (Warsaw, Poland) (represented by: R. Rumpel, legal adviser)

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

Other party to the proceedings before the Board of Appeal: Clinique Laboratories LLC (New York, United States)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 May 2012 (Case R 1134/2001-2) refusing registration of ‘CLEANIC natural beauty’ as a Community trade mark for goods in Classes 3, 5 and 16;

— amend the contested decision by registration of the trade mark for all the goods and services applied for;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Harper Hygienics

Community trade mark concerned: figurative trade mark containing the word element ‘CLEANIC natural beauty’ for goods in Classes 3, 5 and 16

Proprietor of the mark or sign cited in the opposition proceedings: Clinique Laboratories LLC

Mark or sign cited in opposition: Community trade marks No 54 429 for goods in Classes 3, 14, 25 and 42 and No 2 294 429 for goods in Classes 35 and 42, and national (Polish) mark No 51 732 for goods in Classes 3 and 5

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 No 207/2009 (1) as regards establishment of the similarity of the trade marks and of the likelihood of confusion on the part of consumers, and infringement of Article 8(5) of that regulation

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).