ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 142/36

Action brought on 21 April 2008 — Beifa Group v OHIM — Schwan-STABILO Schwanhäußer (design of instruments for writing)

(Case T-148/08)

(2008/C 142/65)

Language in which the application was lodged: English

Parties

Applicant: Beifa Group Co. Ltd (formerly Ningbo Beifa Group Co. Ltd) (Zhejiang, China) (represented by: R. Davis, Barrister and N. Cordell, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Schwan-STABILO Schwanhäußer GmbH & Co KG (Heroldsberg, Germany)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2008 in case R 1352/2006-3;

— remit the matter to the Invalidity Division for further consideration of the issues raised in the application for invalidity; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: A design for the product ‘instruments for writing’ — registered Community design No 352315-0007

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: A national figurative mark representing an instrument for writing registered on 14 December 2006 for goods in class 16 — registration No DE 30045470

Decision of the Invalidity Division: Invalidity of the challenged design

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 25(1)(e) of Council Regulation No 6/2002 as the Third Board of Appeal applied the wrong test to determine whether there was the requisite use of the trade mark by the applicant; the Third Board of Appeal should have considered whether the use of the trade mark by the other party to the proceedings has been both within the meaning of Article 25(1)(e) of Council Regulation No 6/2002 and German national law; in reaching its decision under Article 25(1)(e) of Council Regulation No 6/2002 the Third Board of Appeal should have applied the test for trade mark infringement upheld under German national law.
EN Official Journal of the European Union C 183/29

Action brought on 22 May 2008 — Interflon v OHIM — Illinois Tool Works (FOODLUBE)

(Case T-200/08)

(2008/C 183/54)

Language in which the application was lodged: English

Parties

Applicant: Interflon BV (Roosendaal, Netherlands) (represented by: S. M. Wertwijn, lawyer)

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

Other party to the proceedings before the Board of Appeal: Illinois Tool Works Inc. (Glenview, United States)

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 3 March 2008 in case R 638/2007-2; and

— grant applicant's request for the cancellation of the Community trade mark concerned.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘FOODLUBE’ for goods in classes 1 and 4 — registration No 1 647 734

Decision of the Cancellation Division: Refusal of the request for the declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the trade mark concerned is devoid of any distinctive character; infringement of Article 7(1)(c) of Council Regulation 40/94 as the trade mark concerned is not capable of distinguishing the indicated goods in terms of their origin.
EN Official Journal of the European Union C 171/47

Action brought on 13 May 2008 — Rodd & Gunn Australia v OHIM (Representation of a dog)

(Case T-187/08)

(2008/C 171/90)

Language in which the application was lodged: English

Parties

Applicant: Rodd & Gunn Australia Limited (Wellington, New Zealand) (represented by: B. Brandreth, Barrister and N. Jenkins, Solicitor)

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 12 March 2008 in case R 1245/2007-4;

— order restitutio in integrum in respect of Community trade mark No 339 218; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark consisting of a representation of a dog for goods in classes 16, 18, and 25 — Community trade mark No 339 218

Decision of the Trade Marks and Register Department: Refusal of the application for restitutio in integrum

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 47 of Council Regulation No 40/94 as renewal of the Community trade mark is permitted not only to the proprietor of such or to its professional representative; the Board of Appeal erred in law and in its assessment of the facts in holding that the Applicant and its authorised representative had failed to exercise due care in the circumstances; the Board of Appeal erred in law in holding that it was careless of the Applicant to appoint Computer Patent Annuities Limited, a trade marks renewals agency, to renew its marks.
EN Official Journal of the European Union C 197/29

Action brought on 9 June 2008 — Spain v Commission

(Case T-206/08)

(2008/C 197/51)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: Sr. F. Díez Moreno)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF), in so far as it includes corrections which affect the Kingdom of Spain, deriving from two investigations concerning potential for vine production (VT/VI/2002/14 and VT/VI/2006/09), totalling EUR 54 949 195,80, as a result of the application of a correction at a flat rate of 10 % of all the expenditure declared earlier by way of related assistance; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The exclusions from Community financing which affect Spain in the present proceedings derive from two investigations concerning potential for vine production (VT/VI/2002/14 and VT/VI/2006/09), taking as a basis for the calculation of the financial correction the expenditure declared by Spain for all the assistance measures for which the products resulting from illegal plots of vineyard plantations in the budgetary years 2003 and 2004 could compete, for a total of EUR 54 949 195,80 (correction at a flat rate of 10 % of all the expenditure declared by way of such assistance, in respect of defects in controls of the prohibition on any plantation of vines).

The Kingdom of Spain challenges the proposed financial correction, considering it unjustified and disproportionate, on the basis of the following arguments:

— failure to state the reasons on which the proposed correction is based;

— correct implementation by Spanish organisations of controls for the detection of illegal plantations in 2003 and 2004;

— failure by the Commission to carry out the procedures provided for in connection with the clearance of accounts,

— inappropriateness of using the results of the investigation carried out in 2002;

— rejection of the extrapolation of the proposed correction to the Autonomous Regions not visited; and
EN Official Journal of the European Union C 209/60

Action brought on 16 June 2008 — Procter & Gamble v OHIM — Laboratorios Alcala Farma (oli)

(Case T-240/08)

(2008/C 209/108)

Language in which the application was lodged: English

Parties

Applicant: The Procter & Gamble Company (Cincinnati, United States) (represented by: N. Beckett and T. Scourfield, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Alcala Farma SL (Alcala de Henares, Spain).

Form of order sought

— Annul the decisions of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 April 2008 in case R 1481/2007-2 and of the Opposition Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 July 2007 in opposition proceedings No B 893 216;

— allow the applicant's opposition to the registration as a Community trade mark of the application dated 4 October 2004 for the figurative mark ‘oli’ for goods in classes 3 and 5;

— order OHIM to refuse registration of the said application dated 4 October 2004: and

— order the other parties hereto 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 ‘oli’ for goods in classes 3 and 5 — application No 4 059 176

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

Mark or sign cited: The Community trade marks ‘OLAY’ for goods in classes 3 and 5

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) of Council Regulation No 40/94 as the trade marks concerned are similar and the use of the trade mark applied for is likely to cause confusion.
EN Official Journal of the European Union C 223/51

Action brought on 23 June 2008 — Konsum Nord v Commission

(Case T-244/08)

(2008/C 223/89)

Language of the case: Swedish

Parties

Applicant: Konsum Nord ekonomisk förening (Umeå, Sweden) (represented by: U. Öberg, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul in its entirety Commission Decision C(2008) 311 final of 30 January 2008 on the State aid implemented by Sweden for Konsum Jämtland ekonomisk förening;

— order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

By decision of 30 January 2008 on State aid No C 35/2006 (ex NN 37/2006) implemented by Sweden for Konsum Jämtland, which merged with the applicant in 2006, the Commission found that the sale by the municipality of Åre of parts of an unbuilt plot of land for SEK 2 million instead of SEK 6,6 million, which was offered by Konsum Jämtland's competitor, Lidl, constituted State aid contrary to Article 87 EC.

The applicant submits in support of its action that the Commission has committed a series of incorrect assessments in its legal classification of the disputed sale as State aid since:

— the Commission incorrectly found that the sale was not at the market price and thus constituted an economic advantage for Konsum Jämtland;

— the Commission did not take into consideration the fact that the sale formed part of a series of land transactions undertaken between different parties, the purpose of which was the implementation of detailed plans for the village of Åre;

— the Commission incorrectly assumed that the offer made by the competitor, Lidl, was incompatible with a number of conditions and that it was binding and credible; and

— the Commission wrongly applied the principle of a private investor in a market economy.

Further, the applicant submits that the Commission disregarded its own guidelines in the Communication on State aid elements in sales of land and buildings by public authorities (1) and failed to fulfil its duty of inquiry since it failed to examine all the factual circumstances.

Finally, the applicant asserts that the alleged State aid neither distorts competition nor affects trade between the Member States.

(1) OJ 1997 C 209, p. 3.
Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 10 April 2008 (R 1573/2006-4) so as to allow the applicant's appeal of 29 November 2006 in its entirety, or in the alternative, to allow the appeal for Classes 6, 11 (excluding lamps (electric), fitted lamps, ceiling lamps and floor lamps), 14 (excluding chocolates), 16, 20, 21 (excluding chocolates) and 34;

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 247/17

Action brought on 21 July 2008 — Securvita v OHIM (Natur-Aktien-Index)

(Case T-285/08)

(2008/C 247/32)

Language in which the application was lodged: German

Parties

Applicant: Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH (Hamburg, Germany) (represented by: M. van Eendenburg, Rechtsanwalt)

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

Form of order sought

— Vary the decision of the Fourth Board of Appeal of 26 May 2008 in Case R 525/2007-4 to the effect that it be ordered that the word mark ‘Natur-Aktien-Index’ be registered as a Community trade mark at the Office for Harmonisation in the Internal Market.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Natur-Aktien-Index’ for goods and services in Classes 16, 36 and 42 (application No 4 861 175).

Decision of the Examiner: rejection of the application.

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

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), since the mark applied for is not devoid of any distinctive character.

(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 247/16

Action brought on 17 July 2008 — Grazer Wechselseitige Versicherung v Commission

(Case T-282/08)

(2008/C 247/31)

Language of the case: German

Parties

Applicant: Grazer Wechselseitige Versicherung AG (Graz, Austria) (represented by: H. Wollmann, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Pursuant to Article 231(1) EC, annul Commission Decision C(2008) 1625 final of 30 April 2008 (No C 56/2006, ex NN 77/2006 — Privatisation of the Bank Burgenland) in its entirety;

— Pursuant to Article 87(2) of the Rules of Procedure of the Court, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1625 final of 30 April 2008 in which the Commission decided that the State aid which Austria granted in contravention of Article 88(3) EC to the Versicherungsgesellschaft Grazer Wechselseitige Versicherung AG and the GW Beteiligungserwerbs- und -verwaltungsGmbH in the context of the privatisation of the HYPO Bank Burgenland AG is incompatible with the common market.

In support of its action the applicant claims first that the Commission misapplied Article 87(1) EC in a number of respects. In particular it argues in that regard that there are several indications that the market value of the privatised bank at the time of the sale was significantly lower than the purchase price offered by the applicant, meaning that it was not given preferential treatment when the sale took place.

Moreover, it is claimed that the defendant misapplied the private vendor test. In that regard the applicant asserts that the Commission's argument that it was impermissible in the context of the decision to award aid to take into account the legal guarantee (‘Ausfallhaftung’) by the Land of Burgenland for certain liabilities of the privatised bank is wrong. Furthermore, the applicant claims in that context that the Commission proceeds not from the model of a genuine private sector investor but from the fiction of a seller prepared to assume a 100 % risk.

In addition, the applicant argues that the Commission has not proved that the applicant's offer was nominally worse than the offer of the competing bidder after all the necessary adjustments were carried out.

In the alternative, the applicant argues that the Commission failed, in assuming there to be a State aid, to examine its compatibility with the common market in the light of Article 87(3)(c) EC.

Finally, the applicant claims that the reasoning of the contested decision is deficient in a number of respects.
EN Official Journal of the European Union C 260/14

Action brought on 30 July 2008 — Tresplain Investments v OHIM — Hoo Hing (Golden Elephant Brand)

(Case T-303/08)

(2008/C 260/26)

Language in which the application was lodged: English

Parties

Applicant: Tresplain Investments Ltd (Hong Kong, China) (represented by: D. McFarland, Barrister)

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

Other party to the proceedings before the Board of Appeal: Hoo Hing Holdings Ltd (Romford, 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 7 May 2008 in case R 889/2007-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘Golden Elephant Brand’ for goods in class 30 — Community trade mark registration No 241 810

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: The unregistered figurative mark ‘GOLDEN ELEPHANT’, which had been in use in the United Kingdom

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

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

Pleas in law: Infringement of Article 73 and 74(1) of Council Regulation No 40/94 as the Board of Appeal erred by taking into account alleged facts, as well as legal presumptions and assumptions that had not been introduced or substantiated by the parties, while at the same time it refused to take into account other facts, evidence and arguments advanced by the applicant; infringement of Article 8(4) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there was a likelihood of relevant confusion between the trade marks concerned and, as a result, a likelihood of damage.
EN Official Journal of the European Union C 247/17

Action brought on 25 July 2008 — Cadila Healthcare v OHIM — Laboratorios Inibsa (ZYDUS)

(Case T-287/08)

(2008/C 247/34)

Language in which the application was lodged: English

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, A. Juaristi and F. Potin, lawyers)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Inibsa, SA (Llissa de Vall, 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 5 May 2008 in case R 1322/2007-2; and

— Order the defendant to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZYDUS’ for goods in classes 3, 5 and 10 — application No 3 277 662

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: Spanish trade mark registration No 2 360 938 of the mark ‘CIBUS’ for goods in class 5; Spanish trade mark registration No 2 360 939 of the mark ‘CIBUS’ for goods in class 3

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: The Board of Appeal erred in its decision that the Opposition Division stated the reasons for its decision and, thus, that Article 73 of Council Regulation 40/94 was not breached; the Board of Appeal erred in its decision that there was a likelihood of confusion between the earlier trade marks and the trade mark applied for, in breach of general principles of trade marks law and, in particular, Article 8(1)(b) of Council Regulation 40/94.
EN Official Journal of the European Union C 272/37

Action brought on 12 August 2008 — Armamento Li Causi v Commission

(Case T-327/08)

(2008/C 272/75)

Language of the case: Italian

Parties

Applicant: Armamento Li Causi Snc (Marsala, 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 272/48

Action brought on 28 August 2008 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)

(Case T-365/08)

(2008/C 272/93)

Language in which the application was lodged: Spanish

Parties

Applicant: Emilio Hidalgo, SA (Jerez de la Frontera, Spain) (represented by: Esteve Sanz, 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: Bodegas Hidalgo — La Gitana, SA (Sanlucar de Barrameda,Cadiz, Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM, of 11 June 2008, in Case R 1329/2007-4, notified to the applicant on 18 June 2008;

— Order the defendant and, where appropriate, the intervening party, to pay the costs of the proceedings before the Court of First Instance and those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Emilio Hidalgo, SA.

Community trade mark concerned: Verbal mark ‘HIDALGO’ (Application No 4.032.108) for goods in Class 33 ‘alcoholic beverages (except beers)’.

Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Hidalgo — La Gitana, SA.

Mark or sign cited in opposition: Spanish verbal mark ‘HIDALGO’ for goods in Class 33 (‘Wines in general and especially those covered by the DDOO Jerez and Manzanilla’).

Decision of the Opposition Division: Opposition upheld and application for registration rejected.

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

Pleas in law: Infringement of Articles 73 and 61(2) of Regulation (EC) No 40/94 on the Community trade mark (CTM) and the applicant's rights of the defence, by basing the contested decision on a document on which the applicant was unable to comment.

The applicant also alleges breach of:

— Article 8(1)(a) of the CTM, in so far as the contested decision considers that wines are identical to other alcoholic beverages in Class 33, other than wines.