ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/61

Action brought on 17 September 2010 — Armani v OHIM — Annunziata del Prete (AJ AMICI JUNIOR)

(Case T-420/10)

()

2010/C 301/97

Language in which the application was lodged: Italian

Parties

Applicant: Giorgio Armani SpA (Milan, Italy) (represented by: M. Rapisardi, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Annunziata del Prete (Naples, Italy)

Form of order sought

The applicant claims that the Court should:

— annul Decision R 1360/2009-2 of 8 July 2010 of the Second Board of Appeal for misapplication and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 in failing to recognise that there is a risk of confusion between the marks at issue;

— uphold the applicant’s arguments as put forward in the opposition proceedings and in accordance with the decision of the Opposition Division;

— reject in its entirety, pursuant to Article 8(1)(b) of Regulation (EC) No 207/2009, Community trade mark application No 6 314 462 in the name of Annunziata del Prete, in respect of the goods and services specified therein;

— order OHIM to comply with the decision and to refuse registration of the mark ‘AJ AMICI JUNIOR’;

— order OHIM, alone and/or together with Annunziata del Prete, to reimburse Giorgio Armani SpA all costs incurred throughout the procedure;

— decide, as a consequence of the annulment, that payment should be made to Giorgio Armani SpA of all the costs incurred in the course of the procedure, including the costs incurred in the appeal, in accordance with Article 91[(b)] of the Rules of Procedure of 2 May 1991.

Pleas in law and main arguments

Applicant for a Community trade mark: Annunziata del Prete

Community trade mark concerned: Figurative mark containing the word element ‘AJ Amici Junior’ (registration application No 6 314 462), for goods and services in Classes 9, 25 and 35

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

Mark or sign cited in opposition: Italian figurative mark containing the word element ‘AJ Armani Jeans’ (No 912 114), for goods in Classes 9, 25 and 35, and the Italian word mark containing the word element ‘ARMANI JUNIOR’ (No 998 554), for goods in Classes 25 and 35

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal upheld

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 with regard to the existence of a risk of confusion between the marks at issue and between the goods covered by those marks
EN Official Journal of the European Union C 301/32

Action brought on 20 August 2010 — F91 Diddeléng and Others v Commission

(Case T-341/10)

()

2010/C 301/55

Language of the case: French

Parties

Applicants: F91 Diddeléng (Dudelange, Luxembourg), Julien Bonnetaud (Yutz, France), Thomas Gruszczynski (Amnéville, France), Rainer Hauck (Maxdorf, Allemagne), Stéphane Martine (Esch-sur-Alzette, Luxembourg), Grégory Molnar (Moyeuvre-Grande, France) and Yann Thibout (Algrange, France) (represented by: L. Misson, C. Delrée and G. Ernes, lawyers)

Defendants: European Commission

Form of order sought

— Annul the contested decision of the European Commission, adopted on 3 June 2010;

— Annul the rules which are contrary to Articles 45 and 101 TFEU;

— Impose any appropriate sanction.

Pleas in law and main arguments

The applicants (Dudelange football club and the non-Luxembourg players employed by that club) seek annulment of the Commission decision of 3 June 2010, communicated by letter of 21 June 2010, in which the Commission informed the applicants that it intended to take no action in regard to their complaint against the Fédération Luxembourgeoise de Football (FLF), based on Articles 45 and 101 TFEU, concerning the FLF rules preventing the applicants from taking part in certain football matches if the number of foreign players appearing on the match sheet is greater than a number laid down in the FLF rules;

In support of their action, the applicants put forward two pleas in law alleging:

— an infringement of Article 45 TFEU, inasmuch as the obligation currently laid down in the FLF rules to place, on the official match sheet, seven players who had obtained their first licence in Luxembourg and the prohibition on placing, on the same match sheet, more than four players transferred during the sporting year constitutes direct discrimination preventing a national of a Member State from exercising an economic activity in Luxembourg territory. The applicants also claim that, in so far as the FLF rules constitute, not direct discrimination, but indirect discrimination, the objectives invoked by the FLF, namely, that its purpose is to promote the game of football as an amateur sport, are unfounded and cannot therefore be regarded as legitimate objectives. The restrictions are therefore disproportionate compared to the objective invoked.
—

infringement of the principles of equal treatment and equal opportunity for tenderers for a public procurement contract in that: — the tendering procedure was arranged in such a way as to favour the tender submitted by ICAS Consortium (the successful tenderer), since the time-limits imposed in respect of the procurement contract were clearly inadequate and disproportionate as they could not be met in practice by tenderers not having a special production line, possessed only by ICAS Consortium; — there was a conflict of interests which favoured the tender submitted by ICAS Consortium, since a person working for a member of ICAS Consortium took part in the tender selection procedure and another person working for a member of ICAS Consortium took part in the preparation of the call for tenders; — ICAS Consortium possessed information which placed it in an advantageous position, since a person employed by a member of ICAS Consortium visited, as an expert for ITER, the applicant’s factories in Korea and cable factories in China and Japan; — infringement of the principle of proper administration and Articles 84 and 94 of the Financial Regulation, since the evaluation procedure was proceeded with, even though only one tender remained and the defendant took no action when the applicant informed it of a conflict of interests that favoured ICAS Consortium; — an error of law committed by the defendant in rejecting the applicant’s tender on the basis of Article 120(4) of the Implementing Rules of the Financial Regulation, since that article does not allow a tender to be rejected automatically without being evaluated, unless it fails to meet an essential requirement or a specific requirement in the specification; — the alleged infringements of the legal rules caused direct and certain loss to the applicant, for which it is justified in seeking compensation.
In support of its claim that the fine should be reduced: Failure to state adequate reasons for the quantification of the penalty, in so far as it remains unclear on the basis of which calculation and which turnover the Commission penalised the applicant. Breach of the upper limit of 10 % of turnover. Failure to state adequate reasons for the increases applied. Misapplication of the 2006 Guidelines on the setting of fines, and also the 1998 Guidelines, in force not only at the material time, but also during the first four years of the procedure. Erroneous assessment of the duration of the applicant’s participation in the cartel, not based on objective findings. Failure on a number of occasions to take account of mitigating circumstances: the demonstrably secondary role played by the applicant in the events at issue; the applicant’s limited market share; and the ineffectiveness of the cartel. The Commission is now time-barred, since no measure was adopted to stop time from running during the five-year period following the surprise inspection.
EN Official Journal of the European Union C 317/44

Action brought on 28 September 2010 — ESGE v OHIM — Kenwood Appliances Luxembourg (KMIX)

(Case T-444/10)

()

2010/C 317/78

Language in which the application was lodged: German

Parties

Applicant: ESGE AG (Bussnang, Switzerland) (represented by: J. Klink, 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: Kenwood Appliances Luxembourg SA (Luxembourg, Luxembourg)

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 14 July 2010 in Case R 1249/2009-2;

— Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2 so that the Opposition Division’s decision of 21 August 2008 in Case B 1252958 is annulled;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings, including the costs incurred in the course of the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Kenwood Appliances Luxembourg SA

Community trade mark concerned: the word mark ‘KMIX’ for goods in Classes 7 and 11

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

Mark or sign cited in opposition: the word mark ‘BAMIX’ for goods in Classes 7 and 40

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) as there is a likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 328/39

Action brought on 30 September 2010 — Anicav v Commission

(Case T-454/10)

()

2010/C 328/66

Language of the case: English

Parties

Applicant: Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav) (Naples, Italy), (represented by: J. da Cruz Vilaça, S. Estima Martins and S. Carvalho de Sousa, lawyers)

Defendant: European Commission

Form of order sought

— Annul the provisions of Article 52 and Annex VIII of Commission Regulation No 1580/2007 (1) as amended by Commission Regulation No 687/2010 (2); and

— Order the defendant to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the partial annulment of Commission Regulation No 1580/2007 as amended by Commission Regulation No 687/2010.

In support of his appeal, the applicant submits the following pleas in law:

Firstly, the applicant alleges that the contested measure breaches the Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (the ‘Single CMO Regulation’) (OJ 2007 L 299, p. 1).

By failing to (i) include processing activities in Annex VIII of Commission Regulation No 1580/2007 and to (ii) exclude preparation, packaging and post-processing activities from the value of marketed production of products intended to be processed, the contested measure breaches the Single CMO Regulation, in so far as the latter establishes that the provisions on producer organisations, namely the granting of aid, shall apply only to products covered by the common market organisation for fruit and vegetables.

Secondly, ther applicant alleges that the contested measure breaches the principle of non-discrimination; by granting to producer organisations aid that covers industrial operations also carried out by private industries, the contested measure breaches the principle of non-discrimination which prohibits treating comparable situations differently, unless such treatment is objectively justified.

Finally, the applicant alleges that the contested measure breaches the principle of proportionality; by granting to producer organisations aid that covers industrial operations also carried out by private industries, the contested measure breaches the principle of proportionality in so far as it exceeds what would be necessary to achieve a hypothetical objective of the Common Agricultural Policy related to the vertical integration of producer organisations.

(1) Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350, p. 1).

(2) Commission Regulation (EU) No 687/2010 of 30 July 2010 amending Regulation (EC) No 1580/2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2010 L 199, p. 12).
EN Official Journal of the European Union C 346/54

Action brought on 21 October 2010 — IDT Biologika v Commission

(Case T-503/10)

()

2010/C 346/106

Language of the case: German

Parties

Applicant: IDT Biologika GmbH (Dessau-Roßlau, Germany) (represented by: R. Gross and T. Kroupa, lawyers)

Defendant: European Commission

Form of order sought

— Annul the decision of the Delegation of the European Union to the Republic of Serbia of 10 August 2010 rejecting the tender submitted in respect of Lot No 1 by IDT Biologika GmbH in response to the call for tenders (reference EuropeAid/129809/C/SUP/RS) for the supply of rabies vaccines to the beneficiary Ministry of Agriculture, Forestry and Water Supply of the Republic of Serbia, and awarding the contract to a consortium of various firms led by ‘Biovet a.s.’;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant challenges the European Commission’s decision of 10 August 2010 to choose a tenderer other than the applicant in the context of a call for tenders for the supply of rabies vaccines (publication reference EuropeAid/129809/C/SUP/RS).

In support of its claim, the applicant alleges infringement of Article 252(3) of Regulation (EC, Euratom) No 2342/2002, (1) in that the chosen tender does not satisfy the technical requirements specified in the tender dossier with regard to the requisite non-virulence to humans of the vaccines offered or with regard to the requisite authorisations and should, therefore, necessarily have been disregarded.

Further, the applicant alleges infringement of the principles of equal treatment and transparency under Article 89(1) of Regulation (EC, Euratom) No 1605/2002, (2) since the applicant’s tender alone satisfies all the requirements with regard to the technical specifications and yet another tender was chosen.

(1) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).
EN Official Journal of the European Union C 328/54

Action brought on 7 October 2010 — Persia International Bank v Council

(Case T-493/10)

()

2010/C 328/83

Language of the case: English

Parties

Applicant: Persia International Bank plc (London, United Kingdom) (represented by: S. Gadhia, S. Ashley, Solicitors, D. Anderson, QC and R. Blakeley, Barrister)

Defendant: Council of the European Union

Form of order sought

— annul paragraph 2 of Table B of the Annex to Council Implementing Regulation (EU) No 668/2010 (1) in so far as it relates to the applicant;

— annul paragraph 4 of Table B of Annex II to Council Decision 2010/413/CFSP (2) in so far as it relates to the applicant;

— declare Article 7(2)(d) of Council Regulation (EC) No 423/2007 (3) inapplicable to the applicant; and

— order the Council to pay the costs of the application.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Implementing Regulation No 668/2010 and of Council Decision 2010/413/CFSP in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision. Furthermore, the applicant applies, in accordance with Article 277 TFUE, for the inapplicability of Article 7(2)(d) of Council Regulation (EC) No 423/2007.

The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-492/10 Melli Bank v Council.

(1) Council implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, OJ 2010 L 195, p. 25

(2) Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ 2010 L 195, p. 39

(3) Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran, OJ 2007 L 103, p. 1
EN Official Journal of the European Union C 346/51

Action brought on 13 October 2010 — MIP Metro v OHIM — J.C. Ribeiro SGPS (MISS B)

(Case T-485/10)

()

2010/C 346/100

Language in which the application was lodged: German

Parties

Applicant: MIP METRO Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C Plate and R. Kaase, 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: J.C. Ribeiro SGPS S.A. (Sta Maria de Feira, Portugal)

Form of order sought

— Declare the action admissible, together with the annexes thereto, against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 August 2010 in Case R 1526/2009-1;

— annul the contested decision in so far as it concerns the opposition to the trade mark application for goods in Classes 14 and 25, since it is incompatible with Article 8(1)(b) of Regulation (EC) No 40/94;

— order the defendant to pay the costs of the proceedings, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: J.C. Ribeiro SGPS S.A.

Community trade mark concerned: word mark 'MISS B' for goods in Classes 14, 16, 18, 21, 25 and 28.

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

Mark or sign cited in opposition: German and international word mark ‘miss H.’ for goods in Classes 6, 9, 14, 16, 18, 25 and 26, and the German figurative mark containing the word element ‘Miss H.’ for goods in Classes 3, 8, 9, 14, 16, 18, 20, 24, 25 and 26.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: appeal granted.

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is a likelihood of confusion between the two 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 346/43

Action brought on 17 September 2010 — IEM Erga — Erevnes Meletes Perivallontos & Khorotaxias v Commission

(Case T-435/10)

()

2010/C 346/87

Language of the case: Greek

Parties

Applicant: IEM Erga — Erevnes Meletes Perivallontos & Khorotaxias A.E. (Athens, Greece) (represented by: N. Sofokleous, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the preparatory act of the European Commission’s Directorate-General for Research of 7 May 2010 notifying the applicant of the decision to issue it with a demand for payment;

— annul demand for payment (debit note) No 3241004968 of the European Commission;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of the preparatory act of the European Commission’s Directorate-General for Research of 7 May 2010 notifying it of the decision to issue it with a demand for payment and the annulment of demand for payment (debit note) No 3241004968 of 14 July 2010 which was issued under Contract FAIR-CT98-9544.

In support of its pleas, the applicant puts forward the following grounds:

— lack of lawful basis and lack of competence inasmuch as the contested measures, which were adopted in the context of Contract FAIR-CT98-9544, are administrative measures adopted without a lawful basis and without competence, because that contract, which is governed, pursuant to Article 10 thereof, exclusively by Greek law, does not grant the Commission the right to determine unilaterally and recover autonomously its claims arising from the contract;

— lack of lawful reasoning, lack of proof and denial of the Commission’s assertions inasmuch as, as is shown by the General Court’s judgment in Case T-7/05 and the invoices issued by the applicant for the supply of services, the sums which the applicant received from Parthenon A.E. in respect of those invoices constituted part of its remuneration for the supply of the services set out in the invoices and not an advance payment which Parthenon A.E. had received from the Commission as the applicant’s representative;

— conrtradictory reasoning in the contested measures;
EN Official Journal of the European Union C 30/55

Action brought on 6 December 2010 — Novatex v Council

(Case T-556/10)

()

2011/C 30/97

Language of the case: English

Parties

Applicant: Novatex Ltd, Karachi, Pakistan, (represented by: B. Servais, lawyer)

Defendant: Council of the European Union

Form of order sought

— annul Council Implementing Regulation (EU) No 857/2010 of 27 September 2010 imposing a definitive countervailing duty and collecting definitely the provisional duty imposed on imports of certain polyethylene terephthalate originating in Iran, Pakistan and the United Arab Emirates (1);

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

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

First plea in law, alleging that the Council violated Article 3 of Council Regulation (EC) No 597/2009 (2) by erroneously concluding that the Final Tax Regime (FTR) is a scheme which forgoes government revenue and, consequently, constitutes a financial contribution and that the FTR invariably confers benefit to the applicant. The applicant submits that:

— the Final Tax Regime cannot be considered to constitute a financial contribution on the basis of Article 3(1)(a)(ii) of Council Regulation (EC) No 597/2009, interpreted in accordance with the relevant provision of the WTO Agreement on Subsidies and Countervailing Measures and the interpretation given thereto by the WTO case law.

— the contested regulation violates Article 3(2) of Council Regulation (EC) No 597/2009, interpreted in accordance with the relevant provision of the WTO Agreement on Subsidies and Countervailing Measures by concluding that the Final Tax Regime confers a benefit on the applicant.

Second plea in law, alleging that the Council violated:

— Articles 3(2) and 6(b) of the Council Regulation No 597/2009 interpreted in accordance with the relevant provision of the WTO Agreement on Subsidies and Countervailing Measures by using the applicable commercial rate prevailing during the investigation period, as found on the State Bank of Pakistan website, rather that the commercial rate prevailing at the time the loan was contracted by the applicant;

— Article 7(2) of the Council Regulation No 597/2009 interpreted in accordance with the relevant provision of the WTO Agreement on Subsidies and Countervailing Measures by applying an inappropriate denominator, that is, the export turnover, while the appropriate denominator was the turnover.

(1) OJ 2010 L 254, p. 10

(2) Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community, OJ 2009 L 188, p. 93