ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 269/57

Action brought on 21 July 2011 — Evonik Industries v OHIM — Bornemann (EVONIK)

(Case T-390/11)

2011/C 269/124

Language in which the application was lodged: German

Parties

Applicant: Evonik Industries AG (Essen, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal: Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen (Obernkirchen, Germany)

Form of order sought

The applicant claims that the Court should:

— annul the defendant's decision (of the Second Board of Appeal) of 19 April 2011 (Case R 1802/2010-2) in so far as it denies international mark No 918 426‘EVONIK’ protection within the European Union;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘EVONIK’ for goods and services in Classes 1, 2, 3, 4, 5, 6, 7, 9, 11, 16, 17, 19, 35, 37, 39, 40, 41 and 42 — International registration number 918 426.

Proprietor of the mark or sign cited in the opposition proceedings: Johann Heinrich Bornemann GmbH — Geschäftsbereich Kunststofftechnik Obernkirchen.

Mark or sign cited in opposition: Community word mark ‘EVO’ for goods and services in Classes 7, 37 and 42.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) and Articles 75 and 76 of Regulation No 207/2009 since, (i) there is no likelihood of confusion between the opposing marks, (ii) the Board of Appeal based its decision on grounds on which the applicant could not voice its opinion, and (iii) the Board of Appeal based its decision on arguments which were not raised by the opponent in the proceedings.
EN Official Journal of the European Union C 282/40

Action brought on 29 July 2011 — Axa Mediterranean v Commission

(Case T-405/11)

2011/C 282/75

Language of the case: Spanish

Parties

Applicant: Axa Mediterranean Holding, SA (Palma de Mallorca, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and M. Muñoz de Juan, lawyers)

Defendant: European Commission

Form of order sought

— Admit and uphold the request for the taking of evidence;

— admit and uphold the grounds for annulment set out in this application;

— annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid;

— alternatively, annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid when applied to shareholding acquisitions that involve acquisition of control;

— alternatively, annul Article 4 of the Decision insofar as it applies the recovery order to transactions concluded prior to publication in the OJEU of the final Decision to which this action refers;

— alternatively, annul Article 1(1) and, alternatively, Article 4 of the Decision insofar as it refers to transactions carried out in Mexico and Turkey, and

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The present action is directed against Commission Decision C(2010) 9566, of 12 January 2011, on the tax amortisation of financial goodwill for foreign shareholding acquisitions.

The pleas and main arguments are those already put forward in Case T-399/11, Banco de Santander and Santusa Holding v Commission.
EN Official Journal of the European Union C 282/45

Action brought on 3 August 2011 — Hellenic Republic v Commission

(Case T-425/11)

2011/C 282/83

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: P. Milonopoulos and K. Boskovits)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2011) 3504 final of 24 May 2011 relating to State aid to certain Greek casinos, No C 16/2010 (ex NN 22/2010, ex CP 318/2009).

In support of the action, the applicant puts forward the following grounds for annulment.

1. First ground : Incorrect interpretation of Article 107(1) TFEU relating to the concept of State aid. More specifically, the applicant submits that the defendant mistakenly supposes that a lower charge for an admission ticket at certain casinos conferred an advantage upon them through the reduction of State income. Also, the supposed recipients of the aid are not in a comparable legal and factual position vis-à-vis the other casinos that operate in Greece, intra-Community trade is not affected and competition within the internal market is not distorted.

2. Second ground : Inappropriate, deficient and contradictory reasoning as regards establishing State aid. The applicant observes in particular that the reasoning is contradictory since it accepts that a lower charge for a ticket can increase custom at the casinos in question while at the same time it contests the increase in State income by reason of the increase in custom. Also, the reasoning is deficient in relation to proof of the advantage and to establishing the effect on intra-Community trade and it is clearly erroneous as regards proof of the measure’s selective nature.

3. Third ground : Recovery of the aid infringes Article 14 of Council Regulation (EC) No 659/99. (1) More specifically, the applicant submits that the aid is not sought from the actual beneficiaries, that is to say, the customers of the casinos that charge a lower ticket price. Also, recovery is contrary to the general principle of the protection of legitimate expectations, by reason of the previous case-law of the Greek Council of State and the defendant’s conduct, and to the general principle of proportionality since it imposes disproportionate and unjustified burdens on the supposed recipients of the aid and strengthens the competitive position of the casinos that charge the ticket price of EUR 12.

4. Fourth ground : The defendant calculated the sums to be recovered incorrectly. The applicant maintains that the defendant is unable to calculate precisely the supposed advantage of the recipients of the aid and does not take into account the effect which the charging of a lower ticket price had or could have had on demand.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 290/13

Action brought on 5 August 2011 — Computer Resources v Publications Office

(Case T-422/11)

2011/C 290/17

Language of the case: English

Parties

Applicant: Computer Resources International (Dommeldange, Luxembourg) (represented by: S. Pappas, lawyer)

Defendant: Publications Office of the European Union

Form of order sought

— Annul the decision of the Publications Office of the European Union of 22 July 2011, to reject the offers submitted by the applicant in the framework of the open tender No AO 10340 ‘Computing services — software development, maintenance, consultancy and assistance for different types of IT applications’ (OJ 2011/S 66-106099); and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant disregarded an essential formal requirement, as the contested decision does not contain any reasoning as far as the particular grounds that the awarding authority took into account when concluding that the offer of the applicant was abnormally low.

2. Second plea in law, alleging that the defendant violated the applicable procedure, as enshrined in Article 139 of Commission Regulation (EC, Euratom) No 2342/2002 (1).

3. Third plea in law, alleging that the defendant has made a misuse of procedure or issued its decision with no proper legal basis or at least erred as far as its reasoning is concerned, as the clarifications given by the applicant were not understood and remained unanswered.

(1) 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).
2.

Second plea in law, alleging that the defendant infringed the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as: — at no time it provided for the communication of detailed reasons for the inclusion of the applicant in the lists of persons subject to the restrictive measures; and — it did not provide the applicant with the possibility to effectively exercise his rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing him to effectively request his removal from the lists of persons covered by the restrictive measures.
EN Official Journal of the European Union C 298/27

Action brought on 12 August 2011 — ICdA and Others v Commission

(Case T-456/11)

2011/C 298/50

Language of the case: English

Parties

Applicants: International Cadmium Association (ICdA) (Bruxelles, Belgium), Rockwood Pigments (UK) Ltd (Stoke-on-Trent, United Kingdom) and James M Brown Ltd (Stoke-on-Trent, United Kingdom) (represented by: R. Cana and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Contested Act, in so far, as it restricts the use of cadmium pigments in plastic materials, other than those plastic materials in which the use was restricted before the adoption of the Contested Act; and

— Order the Commission to pay all the cost and expenses.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law.

1. First plea in law, alleging — that the contested regulation infringes Articles 137 (1)(a) and 68-71 of the REACH Regulation (1);

2. Second plea in law, alleging — that the contested regulation is based on a manifest error of assessment;

3. Third plea in law, alleging — that the contested regulation infringes the principle of legal certainty and legitimate expectations;

4. Fourth plea in law, alleging — that the contested regulation infringes REACH regulation in so far as it imposes restrictions on a group of substances, not assessed individually;

5. Fifth plea in law, alleging — that the contested regulation infringes the TBT agreement;

6. Sixth plea in law, alleging — that the contested regulation infringes the applicants’ procedural rights;

7. Seventh plea in law, alleging — that the contested regulation is inadequately reasoned, contrary to Article 296 TFEU;

8. Eight plea in law, alleging — that the contested regulation infringes the principle of proportionality.

(1) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1)
EN Official Journal of the European Union C 298/22

Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

(Case T-437/11)

2011/C 298/42

Language in which the application was lodged: English

Parties

Applicant: Golden Balls Ltd (London, United Kingdom) (represented by: M. Edenborough, QC, and S. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Intra-Presse (Boulogne-Billancourt, 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 26 May 2011 in case R 1310/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of goods in class 16; and

— Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GOLDEN BALLS’ for goods in classes 9, 21 and 24 — Community trade mark application No 6324164

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 4226148 of the word mark ‘BALLON D’OR’, for amongst others goods and services in classes 9, 14, 16, 25 and 41

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and partially accepted the opposition and the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there is a perceived conflict between the Community trade mark application and the earlier mark.
—

annul (i) Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria, in so far as those measures concern the applicant, and (ii) the subsequent Implementing Decisions 2011/302/CFSP of 23 May 2011 and 2011/367/CFSP of 23 June 2011 in so far as they include its name in the list of persons and entities referred to in Articles 3 and 4 of Decision 2011/273/CFSP;
—

Annul the decision of the Publications Office of the European Union rejecting the offer submitted by the applicant in the tendering procedure-Invitation to specific tender no. 10369 ‘Revamping of the OLAF website’ implementing Competitive Multiple Framework Service Contract no. 10224 lot 1, and related decisions of the Publications Office including the one to award the respective contract to a sucessful tenderer and selected contractor;
EN Official Journal of the European Union C 340/25

Action brought on 22 August 2011 — Natura Selection v OHIM — Menard (natura)

(Case T-461/11)

2011/C 340/52

Language in which the application was lodged: Spanish

Parties

Applicant: Natura Selection SL (Barcelona, Spain) (represented by: E. Sugrañes Coca, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ernest Menard SA (Bourseul, France)

Form of order sought

The applicant claims that the Court should:

— admit the present application;

— require OHIM to produce in these proceedings the evidence of reputation to which the applicant referred during the appeal procedure in Case R 2454/2010-2 and which is identified in paragraph 39 of the application;

— annul the decision of the Second Board of Appeal of OHIM of 8 June 2011 in Case R 2454/2010-2 and the decision of the Opposition Division of 21 October 2010 in Case B 1072513;

— grant full registration to figurative mark No 4 713 368‘natura’, refused by opposition B 1072513 for goods in Class 20;

— order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Natura Selection

Community trade mark concerned: Figurative mark ‘natura’ for goods and services in Classes 14, 20, 25 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Ernest Menard SA.

Mark or sign cited in opposition: Word mark ‘natura’ for goods and services in Classes 19 and 20.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) given that there is no likelihood of confusion between the trade marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 355/22

Action brought on 27 September 2011 — Delphi Technologies v OHIM (INNOVATION FOR THE REAL WORLD)

(Case T-515/11)

2011/C 355/40

Language of the case: English

Parties

Applicant: Delphi Technologies, Inc. (Wilmington, United States of America) (represented by: C. Albrecht and J. Heumann, lawyers)

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

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 23 June 2011 in case R 1967/2010-2;

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘INNOVATION FOR THE REAL WORLD’, for goods in classes 7, 9, 10 and 12 — Community trade mark application No 7072705

Decision of the Examiner: Refused the application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) misunderstood the burden of arguments and proof laid down in Article 7(1)(b); (ii) erred in applying the relevant case law of the ECJ for the assessment of distinctiveness of slogans and the possible meaning of the mark applied for; and, (iii) neglected the substantial use and notoriety of the mark which is important for the perception of the slogan by the relevant consumers. Infringement of Article 7(1)(b) of Council Regulation No 207/2009 and the general principles of the administrative proceedings, as the Board of Appeal did not take into account that identical and similar slogans with the word ‘INNOVATION’ have already been registered in the EU and in particular by the OHIM.
EN Official Journal of the European Union C 355/21

Action brought on 28 September 2011 — i-content v OHIM — Decathlon (BETWIN)

(Case T-514/11)

2011/C 355/39

Language in which the application was lodged: English

Parties

Applicant: i-content Ltd Zweigniederlassung Deutschland (Berlin, Germany) (represented by: A. Nordemann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Decathlon SA (Villeneuve d'Ascq, 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 30 June 2011 in case R 1816/2010-1, and reject the opposition No B 001494205;

— Order the defendant 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 word mark ‘BETWIN’, among others for goods in classes 25, 26 and 28 — Community trade mark application No 7281652

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 6780951, of the figurative mark ‘bTwin’, among others for goods in classes 25 and 28; French trade mark registration No 23191414, of the figurative mark ‘bTwin’, inter alia for goods in class 25; French trade mark registration No 99822017, of the figurative mark ‘bTwin’, inter alia for goods in class 28

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the marks in dispute are confusingly similar.
EN Official Journal of the European Union C 235/13

Action brought on 23 December 2011 — H-Holding v Parliament

(Case T-672/11)

2012/C 235/33

Language of the case: German

Parties

Applicant: H-Holding AG (Cham, Switzerland) (represented by: R. Závodný, lawyer)

Defendant: European Parliament

Form of order sought

— Recognise that the applicant has suffered damage as a result of the defendant’s failure to act on the applicant’s petition of 24 August 2011;

— determine that the European Union is responsible for compliance with the rules relating to the funding of political parties at European level;

— require the defendant to authorise the European Anti-Fraud Office (OLAF) to carry out a financial audit in relation to a Czech political party;

— require the defendant to initiate proceedings against the Czech Republic;

— order the defendant to pay compensation;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant submits that the defendant has failed to take action in relation to the applicant’s petition of 24 August 2011 concerning the funding of a Czech political party.
EN Official Journal of the European Union C 362/18

Action brought on 26 September 2011 — Peek & Cloppenburg v OHIM — Peek & Cloppenburg (Peek & Cloppenburg)

(Case T-507/11)

2011/C 362/26

Language in which the application was lodged: German

Parties

Applicant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: S. Abrar, lawyer)

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

Other party to the proceedings before the Board of Appeal: Peek & Cloppenburg (Hamburg, 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 28 February 2011 in Case R 262/2005-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Peek & Cloppenburg’ for services in Class 35

Proprietor of the mark or sign cited in the opposition proceedings: Peek & Cloppenburg

Mark or sign cited in opposition: another earlier sign, namely the company name ‘Peek & Cloppenburg’, which is valid in Germany

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(4) of Regulation No 207/2009 as the use of the subsequent mark ‘Peek & Cloppenburg’ may not be prohibited and there is no right to prohibit use throughout Germany under Paragraph 12 of the Markengesetz (Law on Trade Marks), and infringement of the first part of the first sentence of Article 76(1) of Regulation No 207/2009 as the Board of Appeal should have waited for a decision of the German Federal Court of Justice and the res judicata of a judgment in the German proceedings to have the trade mark removed from the register.