ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 256/27

Action brought on 29 July 2009 — Gühring v OHIM (combination of the colours broom yellow and silver grey)

(Case T-299/09)

2009/C 256/51

Language in which the application was lodged: German

Parties

Applicant: Gühring OHG (Albstadt, Germany) (represented by: A. von Mühlendahl and H. Hartwig, 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 OHIM of 30. April 2009 in Case R 1330/2008-1;

— Annul the decision of the defendant’s Examination Division dated 21 July 2008, in which it refused registration of the applicant’s mark Nr. 6 703 581;

— Declare, that the trade mark applied for No. 6 703 581 complies with the conditions laid down in Article 7(1)(b) of Regulation (EC) No 207/2009 (1); in the alternative,

— Annul the decision of the First Board of Appeal of OHIM of 30. April 2009 in Case R 1330/2008-1;

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

Pleas in law and main arguments

Community trade mark concerned: a mark made up of a combination of the colours of broom yellow and silver grey for goods in Class 7 (registration application No. 6 703 581)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009, because the trade mark applied for has a distinctive character. In addition, infringement of procedural law, in particular of Articles 75 and 76(1) of Regulation No 207/2009

(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 267/69

Action brought on 19 August 2009 — Producteurs de Légumes de France v Commission

(Case T-328/09)

2009/C 267/125

Language of the case: French

Parties

Applicant: Les Producteurs de Légumes de France (Paris, France) (represented by: O. Fachin, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision on the basis of the fourth paragraph of Article 230 of the EC Treaty;

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

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 203 final of 28 January 2009, (1) by which the Commission declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers under the ‘contingency plans’ intended to facilitate marketing of agricultural products harvested in France and instructed the French Republic to recover the aid in question.

In support of its action, the applicant raises two pleas in law, alleging:

— breach of the principle of legitimate expectations, since the fact that the Commission was, in the period 1992 to 2002, aware of the existence of the contingency plans but did not, even so, institute a procedure gave rise to expectations on the part of the producers as to the validity of those plans;

— an error in the amount of reimbursement sought in respect of 2001, which affects the overall amount of the reimbursement and the interest claimed.

(1) OJ L 127, p.11 — published as Decision 2009/402/EC.
EN Official Journal of the European Union C 267/67

Action brought on 14 August 2009 — Audi and Volkswagen v OHIM (TDI)

(Case T-318/09)

2009/C 267/121

Language in which the application was lodged: German

Parties

Applicants: Audi AG (Ingolstadt, Germany) and Volkswagen AG (Wolfsburg, Germany) (represented by P. Kather, lawyer)

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 of 14 May 2009 (Case R 226/2007-1);

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘TDI’ for goods in Class 12 (application No 3179058)

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

— Infringement of Article 7(3) of Regulation (EC) No 207/2009 (1) as the mark applied for has the requisite acquired distinctiveness;

— Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has the requisite distinctive character;

— Infringement of the first clause of Article 76(1) of Regulation No 207/2009 as the defendant failed to take up the applicants’ offers of evidence;

— Infringement of Article 75 of Regulation No 207/2009.

(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 282/55

Action brought on 24 September 2009 — Retractable Technologies. v OHIM — Abbott Laboratories (RT)

(Case T-371/09)

2009/C 282/103

Language in which the application was lodged: German

Parties

Applicant: Retractable Technologies, Inc. (Little Elm, Texas, United States of America) (represented by: K. Dröge, 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: Abbott Laboratories (Abbott Park IL, United States of America)

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 24 July 2009 in Case R 1234/2008-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Retractable Technologies, Inc.

Community trade mark concerned: The figurative mark ‘RT’ for goods in Class 10 (Application No 4 129 037)

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

Mark or sign cited in opposition: The Spanish word mark ‘RTH’ for goods in Class 10

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is no likelihood of confusion between the signs 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 297/23

Action brought on 30 September 2009 — ERGO Versicherungsgruppe v OHIM — DeguDent (ERGO)

(Case T-382/09)

2009/C 297/34

Language in which the application was lodged: German

Parties

Applicant: ERGO Versicherungsgruppe AG (Düsseldorf, Germany) (represented by: V. von Bomhard, A. Renck, T. Dolde and J. Pause, 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: DeguDent GmbH (Hanau on Main, Germany)

Forms of order sought

— Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 44/2008-4;

— Order the defendant or, in the case of an intervention by the other party to the proceedings before the defendant, the intervener to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: ERGO Versicherungsgruppe AG

Community trade mark concerned: The word mark ‘ERGO’ for goods and services in Classes 1 to 45 (Application No 3 292 638)

Proprietor of the mark or sign cited in the opposition proceedings: DeguDent GmbH

Mark or sign cited in opposition: The German word mark No 39 832 880 and the Community trade mark No 1 064 674‘CERGO’ for goods in Class 10, the opposition being brought only against the registration for goods in Classes 5 and 10

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of the first sentence of Article 42(5) in conjunction with the first sentence of Article 64(1) and Article 76(1) of Regulation (EC) No 207/2009 (1), since the Board of Appeal did not fully decide on the appeal;

Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the opposing marks.

(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 282/53

Appeal brought on 23 September 2009 by Roberto Sevenier against the order of the Civil Service Tribunal delivered on 8 July 2009 in Case F-62/08, Sevenier v Commission

(Case T-368/09 P)

2009/C 282/101

Language of the case: French

Parties

Appellant: Roberto Sevenier (Paris, France) (represented by E. Boigelot and L. Defalque, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— set aside the order delivered on 8 July 2009 by the Third Chamber of the European Union Civil Service Tribunal in Case F-62/08 Sevenier v Commission, served on the appellant on 13 July 2009;

— allow the appellant to rely on his submissions to the European Union Civil Service Tribunal;

— order the defendant to pay the costs of both instances.

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the order of the Civil Service Tribunal (CST) of 8 July 2009, delivered in Case F-62/08 Sevenier v Commission, by which the CST dismissed as manifestly inadmissible the action by which the appellant had sought annulment of a decision of the Commission of 24 September 2007 rejecting the appellant’s application, firstly, to retract his offer to resign dated 19 October 1983 and, secondly, for a referral to the invalidity committee.

In support of his appeal, the appellant submits, principally, a single plea in law alleging an error in law committed by the CST in the interpretation of the concept of a purely confirmatory act, since the CST categorised the express decision, made following the implied rejection of the appellant’s application, as a purely confirmatory act despite the fact that the express decision upheld in part the application made by the appellant.

In the alternative, the appellant submits that the CST distorted and disregarded documents in the file and failed to fulfil its duty to give reasons by holding that there was no particular fact peculiar to the case which justified the CST not applying the established case-law on purely confirmatory acts.
EN Official Journal of the European Union C 11/32

Action brought on 23 October 2009 — Purvis v Parliament

(Case T-439/09)

2010/C 11/61

Language of the case: French

Parties

Applicant: John Robert Purvis (Saint Andrews, United Kingdom) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

— Declare that the decisions of the Bureau of the Parliament of 9 March and 1 April 2009 are unlawful in so far as they amend the additional pension scheme and abolish the special methods of payment of the additional pension to Members or former Members of the Parliament who voluntarily joined that optional pension scheme;

— Annul the Parliament’s decision of 7 August 2009, which refused the applicant 25 % of his pension in the form of a lump sum;

— Order the Parliament to pay the costs.

Pleas in law and main arguments

The action has been brought against the Parliament’s decision of 7 August 2009, which was taken to implement the rules on the additional (voluntary) pension scheme in Annex VIII to the Rules governing the payment of expenses and allowances to Members of the European Parliament, as amended by the Parliament’s decision of 9 March 2009, and which dismissed the applicant’s application for payment, in part (25 %) in the form of a lump sum and in part in the form of an annuity, of his additional pension as from August 2009.

In support of his action, the applicant relies as regards the substance of the case on four pleas in law alleging:

— Infringement of the applicant’s acquired rights and of the principle of the protection of legitimate expectations;

— Infringement of the general principles of equal treatment and of proportionality;

— Breach of Article 29 of the Rules governing the payment of expenses and allowances to Members of the European Parliament which provides that the Quaestors and the Secretary-General are responsible for monitoring the interpretation and the strict application of those rules;
EN Official Journal of the European Union C 312/30

Action brought on 22 June 2009 — Labate v Commission

(Case T-389/09)

2009/C 312/51

Language of the case: English

Parties

Applicant: Kay Labate (Tarquinia, Italy) (represented by: I. Forrester, QC)

Defendant: Commission of the European Communities

Form of order sought

— find that there has been a failure to act on the part of the Commission within the meaning of Article 232 EC;

— order the Commission to take the measure necessary to comply with Tribunal’s order;

— accord to the present action appropriate priority, so as to avoid burdening the file with a separate request for expedited treatment and to render judgment within six weeks;

— order such other or further remedies as justice may require;

— order the Commission to pay the costs of the present action.

Pleas in law and main arguments

On 20 February 2009, the applicant made a formal request for the purpose of Article 232 EC that the Commission take a decision recognising the occupational nature of her late husband’s lung cancer for the purpose of Article 73 of the Staff Regulations and the Joint Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease.

In the absence of any such decision or any adoption of position within the required time-limit, the applicant requests that the Court find that the Commission, by failing to take a decision within a reasonable time on her husband’s occupational disease recognition request, has failed to fulfil its obligations under Article 90 of the Staff Regulations and Article 23 of the Joint Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease and is therefore liable for failure to act within the meaning of Article 232 EC.
EN Official Journal of the European Union C 24/68

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (maxi BRICOCENTRO)

(Case T-481/09)

2010/C 24/120

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, 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: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 – R 1046/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘maxi BRICOCENTER’ (Application No 4 939 005) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) in respect of services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 11/31

Action brought on 29 October 2009 — Dufour v ECB

(Case T-436/09)

2010/C 11/59

Language of the case: French

Parties

Applicant: Julien Dufour (Jolivet, France) (represented by: I. Schoenacker Rossi, lawyer)

Defendant: European Central Bank

Form of order sought

— Annul the confirmatory refusal sent by the Board of Directors of the European Central Bank to Mr Dufour by letter dated 2 September 2009 regarding the databases which made possible the compilation of reports on staff recruitment and mobility;

— Consequently, order the European Central Bank to give to Mr Dufour all the databases which made possible the compilation of reports on staff recruitment and mobility;

— Order the European Central Bank to pay the sum of EUR 5 000 in damages in view of the harm suffered by the applicant;

— Order the European Central Bank to pay the costs in their entirety.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of the European Central Bank’s decision of 2 September 2009 refusing to grant him access to the databases which made possible the compilation of reports on staff recruitment and mobility from 1999 to 2009 and which he had requested in the course of preparing his doctoral thesis, and an order for damages because of the delay in the writing of his thesis.

In support of his action, the applicant submits that the statement of reasons for the refusal to grant him access to the documents in question is unlawful because it relies on exceptions which are unsubstantiated and not provided for by Decision ECB/2004/3 of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (1), which was adopted with a view to the implementation of Regulation 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 (2), and is based on the incorrect assumption that the fact that the databases are in an unprinted electronic form means that they are not ‘documents’. Lastly, the European Central Bank is not entitled to rely on, as against the applicant, the difficulties encountered in making the documents available.

(1) OJ 2004 L 80, p. 42.

(2) OJ 2001 L 145, p. 43.
—

Order the defendant to pay all the costs of the proceedings.
EN Official Journal of the European Union C 24/66

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-478/09)

2010/C 24/117

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, 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: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 — R 1009/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 934 501) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTER’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTER’ (No 989 046) in respect of goods in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
—

Breach of Article 90 of the Staff Regulations of the European Communities (‘the Staff Regulations’) by the use of documents which were not in the case-file and breach of the principle that the parties should be heard, as well reversal of the burden of proof to the detriment of the appellant and breach of the duty to state reasons;
EN Official Journal of the European Union C 80/32

Action brought on 31 December 2009 — In ‘t Veld v Council

(Case T-529/09)

2010/C 80/54

Language of the case: English

Parties

Applicant: Sophie in ‘t Veld (Brussels, Belgium) (represented by: O. Brouwer and J. Blockx, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul the decision of the Council to refuse full access to document 11897/09;

— order the Council to pay the applicant’s costs, including the costs of any intervening parties.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Council decision of 8 September 2009 rejecting her request, pursuant to Regulation No 1049/2001 (1), of the full access to document 11897/09 which is an opinion from the Legal Service of the Council concerning the legal basis of the ‘Recommendation from the Commission to the Council to authorise the opening of negotiations between the European Union and the United States of America for an international agreement to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing’. The Council has provided the applicant with a redacted version of document 11897/09, excluding those parts which, in the applicant’s opinion, would enable her to gain knowledge of the substance of the Legal Service’s analysis.

The applicant submits that the contested decision should be annulled because it violates the rules on access to documents contained in Regulation No 1049/2001.

First, the applicant contends that the contested decision is wrongly based on Article 4(1)(a), third indent of Regulation 1049/2001 (protection of international relations) as the Council fails to show how full disclosure of document 11897/09 would undermine the protection of the public interest as regards the protection of the European Union’s international relations.

Second, the applicant claims that the contested decision is also based on an erroneous interpretation of Article 4(2), second indent of Regulation 1049/2001 (protection of legal advice) as this exception does not apply to document 11897/09 since its full disclosure would not undermine the protection of court proceedings or legal advice and since there is an overriding public interest in making document 11897/09 fully accessible to the public.

Subsidiarily, should the Court consider that these aforementioned exceptions would be applicable to document 11897/09, the applicant submits that the Council has wrongly applied Article 4(6) of Regulation 1049/2001 insofar as it redacted from document 11897/09 more information than what was strictly necessary.

Finally, the Applicant submits that the Council did not fulfil its obligation to state reasons for the contested decision.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43