ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 64/59

Action brought on 11 January 2008 — Perfetti Van Melle v OHIM — Cloetta Fazer (CENTER SHOCK)

(Case T-16/08)

(2008/C 64/96)

Language in which the application was lodged: English

Parties

Applicant: Perfetti Van Melle SpA (Lainate, Italy) (represented by: P. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cloetta Fazer AB (Ljungsbro, Sweden)

Form of order sought

— Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 149/2006-4, rendered on 7 November 2007 and notified on 9 November 2007;

— annul the decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on cancellation action No 941 C 973 065;

— confirm the validity of Perfetti's CTM registration No 973 065 CENTER SHOCK;

— order the defendants to bear the costs of the present proceeding, as well as those of the OHIM invalidity and appeal proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘CENTER SHOCK’ for goods in class 30 — Community trade mark No 973 065

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: Cloetta Fazer AB

Trade mark right of the party requesting the declaration of invalidity: The national word marks ‘CENTER’ and ‘CLOETTA CENTER’ for goods in, inter alia, class 30

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 52(1)(a) of Council Regulation No 40/94, as the conflicting trade marks are globally different in sound, meaning and overall impression, although they have a common element. Furthermore, Cloetta and Perfetti operate, according to the applicant, in different markets, since their products address different needs and different consumers.
EN Official Journal of the European Union C 92/36

Action brought on 29 January 2008 — Transportes Evaristo Molina v Commission

(Case T-45/08)

(2008/C 92/73)

Language of the case: Spanish

Parties

Applicant: Transportes Evaristo Molina S.A. (Santa María del Águila, Spain) (represented by: A. Hernández Pardo, L. Ruiz Ezquerra and M.C. Flores Hernández, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision of 12 April 2006 relating to a proceeding under Article 81 of the EC Treaty COMP/B-1/38.348 Repsol CPP, and

— order the Commission to pay the costs.

Pleas in law and main arguments

This application was brought against the decision of the Commission of 12 April 2006 because it accepted the commitments proposed by REPSOL CPP in accordance with the provisions of Article 9(1) of Regulation (EC) 1/2003 (1).

That decision concerns the procedure initiated following the request by REPSOL CPP for negative clearance or, failing that, an individual exemption with respect to the standard agreements and/or contracts by means of which it carried out its fuel distribution activities for motor vehicles through service stations in Spain.

In the offer of commitments accepted by the Commission, REPSOL CPP undertook, inter alia, to increase the annual number of service stations which may change supplier, for which it undertook to offer the bare owners/operators of the service stations the possibility of recovery of the right in rem to the usufruct or over the buildings subject, however, to compliance with a series of conditions by the operator.

The applicant, the owner-operator of a service station which had concluded a supply contract with REPSOL CPP claims that since 19 November 2007, the date on which it received notification from the monitoring trustee of its inclusion in Annex I of REPSOL CPP's commitments, the contested decision directly and individually concerns it.

In support of its claims, the applicant complains, first of all, that the Commission infringed Article 9 of Regulation 1/2003. In particular, the applicant claims that the Commission, although aware of the correct interpretation of the competition rules relating to time limits, accepted the commitments proposed by REPSOL CPP, going beyond and infringing the aim of Article 9 of Regulation 1/2003. In addition, the applicant claims in that context that the contested decision infringes Article 9 of Regulation 1/2003 and the principle of proportionality since the commitments accepted by the Commission were not effective to give an appropriate response to the concerns expressed by the applicant.

Second, the applicant relies on infringement of the principle according to which persons subject to Community law may not benefit from their own unlawful acts or become enriched without just cause.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 92/30

Action brought on 21 January 2008 — Laboratórios Wellcome de Portugal v OHIM — Serono Genetics Institute (FAMOXIN)

(Case T-26/08)

(2008/C 92/62)

Language in which the application was lodged: English

Parties

Applicant: Laboratórios Wellcome de Portugal Lda (Algés, Portugal) (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: Serono Genetics Institute SA (Evry, France)

Form of order sought

— Annul the decision of the First Board of Appeal OHIM dated 20 November 2007 (Case R 10/2007-1) and declare the request for invalidation brought by the appellant well founded;

— annul all cost orders made against the appellant by the Office for Harmonisation in the Internal Market and order the latter to bear the costs of the appellant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘FAMOXIN’ for goods and services in class 5 — Community trade mark No 2 491 298

Proprietor of the Community trade mark: Serono Genetics Institute SA

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

Trade mark right of the party requesting the declaration of invalidity: The national word mark ‘LANOXIN’ for goods in class 5

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 8(1)(b), 52 and 56(2) and (3) of Council Regulation No 40/94, as the Board of Appeal found the earlier trade mark to be used for ‘pharmaceutical preparations with digoxin for cardiovascular illnesses’ and not ‘pharmaceutical preparations with digoxin’ and as it assessed the relevant public, the level of attentiveness of the different parts of the relevant public and the similarity of the conflicting trade marks and goods incorrectly.
EN Official Journal of the European Union C 107/42

Action brought on 10 March 2008 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)

(Case T-115/08)

(2008/C 107/70)

Language in which the application was lodged: English

Parties

Applicant: Gourmet Burger Kitchen Ltd (London, United Kingdom) (represented by C. Sawdy, Solicitor)

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 5 December 2007 in case R 1215/2007-2; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A word mark consisting of the words GOURMET BURGER KITCHEN for various goods and services in classes 29, 30, 31, 32, 33 and 43 — application No 4 615 341

Decision of the examiner: Partial refusal of the application for services in class 43

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the trade mark has acquired distinctiveness through use in the United Kingdom and Ireland.
EN Official Journal of the European Union C 107/33

Action brought on 11 February 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

(Case T-73/08)

(2008/C 107/54)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung eV (Berlin, Germany) (represented by: B. Henning, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision of 26 November 2007 claiming repayment of the sum of EUR 23 228,07 in connection with the ‘Daphne Grant Agreement JLS/DAP/2004-1/080/YC’;

— order the Commission to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an agreement on support for a project in connection with the Daphne II programme (1). By debit note of 26 November 2007, the defendant reclaimed from the applicant part of the payment made in connection with this agreement. The applicant brought the present action against that decision.

The applicant claims in support of its action, first, that the contested decision is in breach of the obligation to state reasons. Second, the principle of a fair hearing has been infringed, as the applicant was not allowed an appropriate period of time to comment and to submit additional documents. Finally, the applicant complains that the contested decision is based on an erroneous assessment of the facts.

(1) Decision No 803/2004/EC of the European Parliament and of the Council of 21 April 2004 adopting a programme of Community action (2004 to 2008) to prevent and combat violence against children, young people and women and to protect victims and groups at risk (the Daphne II programme) (OJ 2004 L 143, p. 1).
EN Official Journal of the European Union C 116/23

Action brought on 18 February 2008 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT)

(Case T-84/08)

(2008/C 116/42)

Language in which the application was lodged: English

Parties

Applicant: Intesa Sanpaolo SpA (Torino, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

— Totally alter the decision of the OHIM Fourth Board of Appeal, Case R 138/2006-4, rendered on 19 December 2007 and notified on 27 December 2007;

— confirm the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it allows application No 3 104 155 COMIT to proceed to registration for classes 35, 36, 41 and 42;

— alter the OHIM Opposition Division's decision dated 12 January 2006, ruling on opposition No B 675 803, as far as it accepts opposition No B 675 803, in part, for the goods in class 16;

— as a consequence, reject opposition No B 675 803 in its entirety and allow application No 3 104 155 COMIT to proceed to registration for all the goods and services of classes 16, 35, 36, 41 and 42;

— order the defendants to bear the costs of the present proceeding, as well as those of the OHIM opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘COMIT’ for goods and services in classes 16, 35, 36, 41 and 42 — application No 3 104 155

Proprietor of the mark or sign cited in the opposition proceedings: MIP Metro Group Intellectual Property GmbH & Co. KG

Mark or sign cited: The national figurative mark ‘Comet’ for goods and services in classes 9, 16, 35, 36, 41 and 42

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the trade mark application in its entirety

Pleas in law: According to the applicant, there is no likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 107/38

Action brought on 23 February 2008 — ars Parfum Creation & Consulting v OHIM (shape of a perfume bottle)

(Case T-104/08)

(2008/C 107/65)

Language in which the application was lodged: German

Parties

Applicant: ars Parfum Creation & Consulting GmbH (Cologne, Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

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 8 November 2007 (Case No R 1656/2006-1);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional trade mark in the shape of a perfume bottle for goods in class 3 (Application No 4 995 361).

Decision of the Examiner: Dismissal of the application.

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

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

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

annul the procurement notice under reference EuropeAid/125672/C/SER/CY for the conclusion of a contract entitled ‘Technical Assistance οn animal husbandry’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 27 December 2007, and annul points 5 and 28.2 of the notice;
EN Official Journal of the European Union C 116/28

Action brought on 20 March 2008 — Okalux v OHIM — Ondex (ONDACELL)

(Case T-126/08)

(2008/C 116/52)

Language in which the application was lodged: German

Parties

Applicant: Okalux GmbH (Marktheidenfeld, Germany) (represented by: M. Beckensträter, Rechtsanwältin)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ondex S.A.S.

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 22 January 2008, received on 24 January 2008, and declare that the opposition of 29 August 2006 is admissible;

— order the defendant to pay the allowable costs, including the costs of the original proceedings (including the costs of the intervener).

Pleas in law and main arguments

Applicant for a Community trade mark: Ondex S.A.S.

Community trade mark concerned: The trade mark ‘ONDACELL’ for goods and services in Classes 6, 17 and 19 (application No 4 755 971).

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

Decision of the Opposition Division: The notice of opposition is deemed not to have been entered.

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

Pleas in law: Infringement of Articles 5 and 8 of Regulation (EC) No 2869/95 (1), Decision No EX-96-1 (2) and Communication No 5/96 (3).

(1) Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33).

(2) Decision No EX-96-1 of the President of the Office of 11 January 1996 concerning the conditions for opening current accounts at the Office (OHIM OJ 1996, 48).

(3) Communication No 5/96 of the President of the Office, of 8 August 1996, concerning current accounts (OHIM OJ 1996, 1461).
EN Official Journal of the European Union C 158/18

Action brought on 15 April 2008 — E.ON Energie v Commission

(Case T-141/08)

(2008/C 158/30)

Language of the case: German

Parties

Applicant: E.ON Energie AG (Munich, Germany) (represented by: A. Röhling, C. Krohs and F. Dietrich, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the defendant's Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie;

— In the alternative, reduce the amount of the fine imposed on the applicant to an appropriate amount;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie AG. In that decision the Commission imposed a fine on the applicant as it broke a seal affixed by representatives of the Commission under Article 20(2)(d) of Regulation (EC) No 1/2003 (1) and, at least negligently, infringed Article 23(1)(e) of that regulation.

The applicant relies on nine pleas in law in support of its action. In the first six pleas the applicant attempts to state that there is insufficient evidence of an infringement of the law. It is submitted in particular that there was failure to have regard to the full burden of proof which lies with the defendant, infringement of the inquisitorial principle, an erroneous assumption that the seal was affixed properly, a false assumption that there was something amiss with the condition of the seal on the following day, a false assumption as to the suitability of the security foil, and that there was failure on the defendant's part to consider alternative scenarios.

With the seventh plea it is submitted that the presumption of innocence was disregarded and thus essential rules as to procedure and form were infringed.

Eighth, the applicant submits that the defendant erred in making the accusation of fault for the purpose of Article 23 of Regulation No 1/2003.

Lastly, it is submitted that there were infringements of the law when the fine was calculated. According to the applicant there was infringement of the principle prohibiting arbitrary measures and of the obligation to state reasons laid down in Article 253 EC. There was failure to have regard to mitigating circumstances and an erroneous acceptance of aggravating circumstances.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 171/39

Action brought on 21 April 2008 — Victor Guedes-Indústria e Comércio v OHIM — Consorci de l'Espai Rural de Gallecs (GALLECS)

(Case T-151/08)

(2008/C 171/74)

Language in which the application was lodged: English

Parties

Applicant: Victor Guedes-Indústria e Comércio, SA (Lisbon, Portugal) (represented by: B. Braga da Cruz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Consorci de l'Espai Rural de Gallecs (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 16 January 2008 in case R 986/2007-2;

— order OHIM to refuse the grant of the registration of Community trademark No 3 710 597 in respect of the goods in classes 29 and 31: and

— order the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Consorci de l'Espai Rural de Gallecs

Community trade mark concerned: The figurative mark ‘GALLECS’ for goods in classes 29 and 31 — application No 3 710 597

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

Mark or sign cited: The national figurative mark ‘GALLO’ for goods in class 29; the national figurative mark ‘GALLO AZEITE NOVO’ for goods in class 29; the national figurative mark ‘AZEITE GALLO’ for goods in class 29; the national mark ‘GALLO AZEITE NOVO’ for goods in class 29; the Community figurative mark ‘GALLO’ for goods in class 29

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) and of Article 8(5) of Council Regulation No 40/94 as the contested mark is similar to earlier marks and its use would be detrimental to the distinctive character of such, taking into account the usual practices in the relevant commercial sector as well as the other circumstances of the case.
EN Official Journal of the European Union C 197/26

Action brought on 21 May 2008 — Transnational Company ‘Kazchrome’ and ENRC Marketing v Council

(Case T-192/08)

(2008/C 197/46)

Language of the case: English

Parties

Applicants: Transnational Company ‘Kazchrome’ (TNK Kazchrome) (Aktobe, Kazakhstan) and ENRC Marketing AG (Kloten, Switzerland) (represented by: L. Ruessmann and A. Willems, lawyers)

Defendant: Council of the European Union

Form of order sought

— To declare the application admissible;

— to annul Council Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia as far as it applies to the applicants;

— order the Council to bear its own costs and those incurred by the applicants.

Pleas in law and main arguments

The applicants, who produce and sell ferro-silicon to the market of the European Union, seek partial annulment of Council Regulation (EC) No 172/2008 (1) of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia.

In support of their application, the applicants submit that they are directly and individually concerned by the contested regulation and that the anti-dumping duty imposed by the said regulation is the result of several manifest errors of assessment, manifest errors of fact and breaches of the Basic Regulation (2) (‘the Basic Regulation’) as well as of the WTO Anti-Dumping Agreement. The applicants further argue that the defendant failed to state reasons as required by Article 253 EC.

On the basis of the first plea, the applicants submit that the Council failed to properly distinguish between effects caused by other known factors from any injury caused by the targeted imports and, thus, the Council's findings violate Articles 3(2), 3(6) and 3(7) of the Basic Regulation.

On the basis of their second plea, the applicants advance that the anti-dumping duty was adopted on the basis of an erroneous assessment of Community interest and in violation of Articles 9(4) and 21 of the Basic Regulation.

On the basis of their third plea, it is submitted that although the applicants provided verifiable information to the institutions, they were allegedly treated as non-cooperating, the Council failed to check the facts used against available information which was brought to their attention and failed to carry out a proper market economy treatment within the time-limits imposed by the Basic Regulation.

On the basis of the fourth plea, the applicants contend that their rights of defence have been violated in the course of the investigation.

(1) OJ 2008 L 55, p. 6.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).