ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 171/46

Action brought on 16 May 2008 — Commission v Atlantic Energy

(Case T-182/08)

(2008/C 171/88)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A.-M. Rouchaud-Joët, S. Lejeune, Agents, and M. Jarvis, Barrister)

Defendant: Atlantic Energy Ltd (Truro, United Kingdom)

Form of order sought

— to order the defendant to pay the Commission the sum of EUR 383 081,19 being the principal amount of EUR 226 010,00 together with EUR 76 233,61 as late payment interest calculated at the ECB rate + 2 % on the principal amount for the period between 1 June 1996 and 28 February 2002 and EUR 84 448,11 as late payment interest calculated on the principal amount plus interest to 28 February 2002 at the ECB rate + 1,5 % for the period between 16 July 2002 and 31 May 2008 less an off set in the sum of EUR 3 610,53;

— to order the defendant to pay EUR 39,33 per day by way of interest from 31 May 2008 until the date on which the debt is repaid in full; and

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

Pleas in law and main arguments

On 29 March 1996 the European Community, represented by the Commission, entered into a contract BU 183/95 UK/AT with Sidney C. Banks Plc and Jenbacher Energiesysteme AG for the implementation of the project ‘Advanced automated gasifier with CHP using waste wood as fuel’ under the Community activities in the field of non-nuclear energy (1). Pursuant to the contract provision, the Commission made an advance payment of its contribution for the project to the designated contract coordinator, Sydney C. Banks Plc.

By fax dated 25 September 1996, Sidney C. Banks Plc informed the Commission that it had decided to withdraw from the project. On 17 April 1998 the European Community, represented by the Commission, entered into Addendum No 1 to the contract by which Atlantic Energy Ltd replaced Sidney C. Banks Plc as a party to, and coordinator under the contract.

Pursuant to clause 2 of the Addendum Sidney C. Banks Plc transferred the advance payment received from the Commission (plus interest) to Atlantic Energy Ltd in April 1998.

The Commission claims an order that Atlantic Energy Ltd repay the advance payment plus interest on the grounds either that the project never effectively commenced or, if it did, was terminated by the Commission.

(1) Council Decision 94/806/EC of 23 November 1994 adopting a specific programme for research and technological development, including demonstration, in the field of non-nuclear energy (1994 to 1998) (OJ L 334, 22.12.1994, p. 87).
EN Official Journal of the European Union C 197/27

Action brought on 26 May 2008 — Market Watch v OHIM — Ares Trading (SEROSLIM)

(Case T-201/08)

(2008/C 197/49)

Language in which the application was lodged: English

Parties

Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. E. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ares Trading, SA (Aubonne, Switzerland)

Form of order sought

— The complaint filed by the applicant be admitted;

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2008 in case R 0805/2007-2 and the application filed by the other party to the proceedings before the Board of Appeal requesting a declaration of invalidity of the Community trade mark concerned be dismissed; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SEROSLIM’ for goods and services in classes 3, 5 and 35 — application No 4 113 321

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: The word mark ‘SEROSTIM’ for goods in class 5 — Community trade mark 2 405 694

Decision of the Opposition Division: Upheld the opposition with respect to all the goods in class 5 and in respect of ‘soaps, hair lotions and dentifrices’ in class 3

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8 of Council Regulation No 40/94 as the most important aspect in assessing the existence of any likelihood of confusion is the overall impression created by the two trade marks in question on the public concerned. Furthermore, the existence of a likelihood of confusion that would be relevant from the point of view of trade mark law, depends, in this connection, on a large number of circumstances, including, but not limited to, the recognition of the trade mark in question, the associations that the used or registered sign appears to be able to create, as well as the degree of similarity between the mark and the sign or between the goods and services identified.
EN Official Journal of the European Union C 209/60

Action brought on 13 June 2008 — Comtec Translations v Commission

(Case T-239/08)

(2008/C 209/107)

Language of the case: English

Parties

Applicant: Comtec Translations Ltd (Leamington Spa, United Kingdom) (represented by: L. R. Scott and E. Bentley, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision letter and remit the applicant's bid for reconsideration;

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

Pleas in law and main arguments

By the present action the applicant seeks the annulment of the Commission's Decision of 16 April 2008 rejecting its tender submitted in the framework of the tender procedure for the conclusion of framework contracts for the translation of documents relating to the policies and administration of the European Union from all EU official languages into English (call for tender No FL-GEN07-EN) (1). The reason given for not retaining the applicant's tender was insufficient technical or professional capacity and lack of, or insufficient proven professional experience.

In support of its action the applicant puts forward a single plea in law. It claims that the administrative procedure has been conducted irregularly and that its procedural rights have not been observed. The applicant submits that it has successfully provided translation into English within the Commission for several years in the framework of contracts previously signed and regularly renewed for which it has received satisfactory rankings regarding the quality of the services. The applicant claims that the evaluation committee's decision took no or no proper account of the successful performance of the applicant in submitting translation assignments to the Commission for 12 years neither it took into consideration the documents evidencing the technical and professional qualifications of the applicant's staff, quality managers and sub-contractors.

(1) Contract notice published : OJ 2007/S 180 — 219517.
EN Official Journal of the European Union C 209/56

Action brought on 9 June 2008 — Habanos v OHIM — Tabacos de Centroamérica

(Case T-207/08)

(2008/C 209/101)

Language in which the application was lodged: Spanish

Parties

Applicant: Corporación Habanos, SA (Ciudad de la Habana, Cuba) (represented by: V. Gil Vega and A. Luiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tabacos de Centroamérica, SL (Pozuelo de Alarcón, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the OHIM of 31 March 2008, and declare that there is a similarity, and a likelihood of confusion, between the composite mark KIOWA and the earlier composite marks COHIBA, which designate identical profits, and a intent, on the part of the applicant for registration, of undue profit from/detriment to the distinctive character and or the reputation of the earlier COHIBA marks cited, and thus refuse registration of the Community mark No 3.963.931 KIOWA (composite); or, in the alternative, annul the decision of the OHIM referred to, and order that the file be sent back to the Second Board of Appeal of the OHIM so that the claims and evidence relating to Article 8(5) of Regulation 40/94 be analysed and examined, and

— order OHIM to pay the costs of all instances, including the fees of the applicant's representatives.

Pleas in law and main arguments

Applicant for a Community trade mark: Tabacos de Centroamérica, SL

Community trade mark concerned: Figurative mark ‘KIOWA’ in respect of goods in Class 34 (application No 3.963.931)

Proprietor of the mark or sign cited in the opposition proceedings: Corporación Habanos, SA, which operates under the business name of Habanos, SA.

Mark or sign cited in opposition: Figurative mark ‘COHIBA’ (Community mark No. 3.323.292), word mark ‘COHIBA’ (Spanish mark No 1.271.173) and the figurative mark ‘COHIBA’ (Spanish mark No 2.052.344) in respect of products in Class 34.

Decision of the Opposition Division: Dismissal of the opposition.

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

Pleas in law: In particular, a high level of similarity between the opposing marks, resulting in a risk of confusion.
Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 10 April 2008 (R 1571/2006-4) so as to allow the applicant's appeal of 29 November 2006 in its entirety;

In the alternative annul the contested decision and refer the matter back to the Office for Harmonisation in the Internal Market to complete the proceedings;
EN Official Journal of the European Union C 223/55

Action brought on 7 July 2008 — Becker Flugfunkwerk v OHIM — Harman Becker Automotive Systems (BECKER AVIONIC SYSTEMS)

(Case T-263/08)

(2008/C 223/98)

Language in which the application was lodged: English

Parties

Applicant: Becker Flugfunkwerk GmbH (Rheinmünster, Germany) (represented by: O. Griebenow, lawyer)

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

Other party to the proceedings before the Board of Appeal: Harman Becker Automotive Systems GmbH (Karlsbad, 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 10 April 2008 in case R 398/2007-1; and

— Refuse opposition No B 484 503 relating to Community trade mark application No 1 829 563.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘BECKER AVIONIC SYSTEMS’ for goods in class 9, application No 1 829 563

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: United Kingdom trade mark registration No 1 258 929 of the word mark ‘BECKER’ for goods in class 9; German trade mark registration No 1 039 843 of the figurative mark ‘BECKER’ for goods in class 9; German trade mark registration No 1 016 927 of the figurative mark ‘BECKER’ for goods in class 37; Finnish trade mark registration No 116 880 of the word mark ‘BECKER’ for goods in class 9; Greek trade mark registration No 82339 of the word mark ‘BECKER’ for goods in class 9; International trade mark registration No 473 178 of the word mark ‘BECKER’ for goods in class 9

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation No 40/94 as there is no likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 247/17

Action brought on 21 July 2008 — Fidelio KG v OHIM

(Case T-286/08)

(2008/C 247/33)

Language in which the application was lodged: German

Parties

Applicant: Fidelio KG (Linz, Austria) (represented by M. Gail, acting as Agent)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 May 2008 (case R 632/2007-4);

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay its own costs as well as those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Hallux’ for goods in Classes 10, 18 and 25 (Application No 5 245 147).

Decision of the Examiner: Partial refusal of the application.

Decision of the Board of Appeal: Appeal partially upheld.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the registered marks concerning the goods ‘orthopaedic article’ and ‘footwear’ do not present any absolute grounds for refusal.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 236/14

Action brought on 14 July 2008 — X Technology Swiss v OHIM — Ipko-Amcor (First-On-Skin)

(Case T-273/08)

(2008/C 236/24)

Language in which the application was lodged: German

Parties

Applicant: X Technology Swiss GmbH (Wollerau, Switzerland) (represented by: A. Herbertz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ipko-Amcor BV (Zoetermeer, Netherlands)

Form of order sought

— Amend the decision delivered on 15 May 2008 by the Fourth Board of Appeal of OHIM in Case R 281/2007-4 in such a way that the opposition is rejected.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘First-On-Skin’ for goods in Classes 18, 23 and 25 (Application for Registration No 4 019 981).

Proprietor of the mark or sign cited in the opposition proceedings: Ipko-Amcor BV.

Mark or sign cited in opposition: the word mark ‘FIRST’ for goods in Class 25 (Benelux Registration No 401 666), the objection having been lodged against registration for goods in Class 25.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division.

Pleas in law: There is no likelihood of confusion between the opposing marks.
EN Official Journal of the European Union C 260/16

Action brought on 4 August 2008 — G-Star Raw Denim v OHIM — ESGW Holdings (G Stor)

(Case T-309/08)

(2008/C 260/29)

Language in which the application was lodged: English

Parties

Applicant: G-Star Raw Denim Kft. (Budapest, Hungary) (represented by: G. Vos, lawyer)

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

Other party to the proceedings before the Board of Appeal: ESGW Holdings Ltd (Tortola, British Virgin Islands)

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 14 April 2008 in case R 1232/2007-1;

— Reject the registration of the Community trade mark application No 4 195 368; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘G Stor’ for goods in class 9

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

Mark or sign cited: Benelux trade mark registration No 545 551 of the word mark ‘G-STAR’ for goods in class 25; Community trade mark registration No 3 445 401 of the word/figurative mark ‘G-STAR’ for goods in class 9 and 25; Community trade mark registration No 3 444 262 of the word mark ‘G-Star’ for goods in class 9 and 25; earlier well-known trade mark ‘G-Star’ protected in various countries for goods in class 25; Community trade mark registration No 3 444 171 of the mark ‘G-STAR RAW DENIM’ for goods in class 9 and 35; Dutch trade name G-Star International B.V.

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

Decision of the Board of Appeal: Annulment of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94 as the Board of Appeal applied the wrong criteria when assessing the required similarity between the trade marks concerned and the required detriment to the earlier trade marks. In addition, the Board of Appeal also made an incorrect assessment of the facts with regard to the abovementioned assessments.
EN Official Journal of the European Union C 247/22

Appeal brought on 1 August 2008 by Kurt-Wolfgang Braun-Neumann against the judgment of the Civil Service Tribunal delivered on 23 May 2008 in Case F-79/07, Braun-Neumann v Parliament

(Case T-306/08 P)

(2008/C 247/43)

Language of the case: German

Parties

Appellant: Kurt-Wolfgang Braun-Neumann (Lohr am Main, Germany) (represented by: P. Ames, Rechtsanwalt)

Other party to the proceedings: European Parliament

Form of order sought by the appellant

— Set aside the order of the European Union Civil Service Tribunal of 23 May 2008 in Case F-79/07;

— rule on the merits and uphold the appellant's original application and therefore order the Parliament to pay him with retroactive effect from 1 August 2004 the other half of the survivor's pension in right of Mrs Mandt in the monthly sum of EUR 1 670,84 plus interest at the rate applied by the European Central Bank on the marginal lending facility, increased by 3 %;

— in the alternative, refer the case back to the Civil Service Tribunal of the European Union for judgment.

Pleas in law and main arguments

The appeal is directed against the Civil Service Tribunal's order of 23 May 2008 in Case F-79/07 Braun-Neumann v Parliament, dismissing as inadmissible the action brought by the appellant.

The appellant submits in support of his appeal that the Civil Service Tribunal erred in law in its interpretation of Article 90(2) of the Staff Regulations of Officials of the European Communities, since its interpretation infringes general principles of Community law. In the appellant's view, the Tribunal's interpretation of a letter as an act adversely affecting it is incorrect. Further, the principle of legal certainty can be satisfied only if the absence of information about available legal remedies is regarded as prejudicial to the determination of when the period for lodging the complaint commenced, since otherwise the litigant's rights would be undermined. Lastly, the Tribunal's interpretation should be regarded as disproportionate in view of the consequences for the appellant.
EN Official Journal of the European Union C 272/34

Action brought on 12 August 2008 — Euromar di Ganesio Pietro v Commission

(Case T-314/08)

(2008/C 272/62)

Language of the case: Italian

Parties

Applicant: Euromar di Ganesio Pietro & C. Snc (Aci Castello, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 272/37

Action brought on 12 August 2008 — Pescatori San Francesco di Paola v Commission

(Case T-324/08)

(2008/C 272/72)

Language of the case: Italian

Parties

Applicant: Società Cooperativa Pescatori San Francesco di Paola (Vibo Valentia, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 272/36

Action brought on 12 August 2008 — Musumeci v Commission

(Case T-322/08)

(2008/C 272/70)

Language of the case: Italian

Parties

Applicant: Antonio Musumeci (Bagnara Calabra, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

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

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.
EN Official Journal of the European Union C 285/51

Action brought on 9 September 2008 — Kingdom of the Netherlands v Commission of the European Communities

(Case T-380/08)

(2008/C 285/92)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels and M. de Mol, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's Decision of 30 June 2008 under reference SG.E3/MV/psi D(2008)5364;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the decision of 13 December 2006 in Case COMP/38.456 — Bitumen (Netherlands) (1) the Commission imposed fines on a large number of undertakings, suppliers and purchasers of road pavement bitumen for infringements of Article 81 EC. The Commission did not publish all particulars in that decision. Various legal persons, public and private, including the applicant, have suffered serious losses as a result of the undertakings' actions. As knowledge of that information would be extremely useful in order to recover those losses, the applicant applied under Article 6(1) of Regulation No 1049/2001 (2) for access to the complete, uncensored version of the decision of 13 September 2006. By decision of 30 June 2008, the Commission rejected that application.

In support of its application the applicant submits that the contested decision is contrary to the right of access referred to in Article 255 EC, read in conjunction with Articles 1 and 4 of Regulation No 1049/2001.

Secondly, the applicant submits that the Commission should have provided partial access, as referred to in Article 4(6) of Regulation No 1049/2001.

Thirdly, the contested decision is contrary to the principle of proportionality.

Fourthly, the contested decision infringes Article 253 EC, as its statement of reasons is defective.

Fifthly, the contested decision is contrary to Article 10 EC, read in conjunction with the principle of proportionality.

(1) Commission Decision 2007/534/EC of 13 September 2006 relating to a proceeding under Article 81 of the Treaty establishing the European Community (Case No COMP/F/38.456 — Bitumen (NL)) (notified under document number C(2006) 4090) (OJ 2007 L 196, p. 40).

(2) 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 L 145, p. 43).