ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 113/17

Action brought on 11 February 2011 — Antrax It v OHIM — Heating Company (Radiators for heating)

(Case T-84/11)

2011/C 113/34

Language in which the application was lodged: Italian

Parties

Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)

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

Other party to the proceedings before the Board of Appeal: Heating Company BVBA (The) (Dilsen, Belgium)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Third Board of Appeal of OHIM of 2 November 2010, in so far as it declared Community design No 000593959-0002 invalid;

— annul the decision of the Third Board of Appeal of OHIM of 2 November 2010 in so far as it ordered Antrax It Srl to pay the costs incurred by The Heating Company BVBA in the proceedings before OHIM;

— order OHIM and The Heating Company to pay Antrax It SRL the costs, dues and legal fees relating to the present proceedings, together with any additional sums required by law;

— order The Heating Company BVBA to pay Antrax It Srl the costs, dues and legal fees incurred by the latter in the proceedings before OHIM, together with any additional sums required by law.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Community design No 000593959-0002 (radiators for heating)

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: The Heating Company BVBA

Grounds for the application for a declaration of invalidity: The contested Community design does not meet the requirements laid down in Articles 4 to 9 of the Community Designs Regulation (CDR), being almost identical to the German design No 4 covered by the multiple registration No 401 10481,8, published on 10 September 2002, and valid in France, Italy and Benelux as international design No DM/0608899

Decision of the Cancellation Division: To declare the Community design invalid

Decision of the Board of Appeal: To annul the contested decision and declare the Community design invalid

Pleas in law: The individual character of Community design No 000593959-0002.
EN Official Journal of the European Union C 95/11

Action brought on 31 January 2011 — Truvo Belgium v OHIM — AOL (TRUVO)

(Case T-77/11)

2011/C 95/17

Language in which the application was lodged: English

Parties

Applicant: Truvo Belgium (Antwerp, Belgium) (represented by: O.F.A.W. van Haperen, lawyer)

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

Other party to the proceedings before the Board of Appeal: AOL LLC (Dulles, 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 7 November 2010 in case R 923/2009-2; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TRUVO’, for goods and services in classes 9, 16, 35, 38, 41 and 42 — Community trade mark application No 5560099

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 in opposition: Community trade mark registration No 4756169 of the figurative mark ‘TRUVEO’ for services in class 42

Decision of the Opposition Division: Upheld the opposition for all the contested services in class 38 and 42, and rejected the Community trade mark application for all the contested services

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as well as it lacks proper motivation or is otherwise impaired to fulfil lawful demands on European Legal proceedings, as the Board of Appeal erred (i) in its comparison of the services, (ii) in its comparison of the signs, (iii) in its assessment of the relevant public, and (iv) in its assessment of likelihood of confusion.
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declare that, concerning the applicant, Mr Philippe MANGOU, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,
EN Official Journal of the European Union C 120/15

Action brought on 18 February 2011 — Rovi Pharmaceuticals v OHIM — Laboratorios Farmaceuticos Rovi (ROVI Pharmaceuticals)

(Case T-97/11)

2011/C 120/35

Language in which the application was lodged: English

Parties

Applicant: Rovi Pharmaceuticals GmbH (Schlüchtern, Germany) (represented by: M. Berghofer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Farmaceuticos Rovi, SA (Madrid, 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 7 December 2010 in case R 500/2010-2;

— Reject the opposition No B 1368580 in its entirety with costs;

— Order the defendant to register Community trade mark application No 6475107.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ROVI Pharmaceuticals’, for goods and services in classes 3, 5 and 44 — Community trade mark application No 6475107

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 in opposition: Community trade mark registration No 24810 of the figurative mark ‘ROVI’, for goods in classes 3 and 5; Community trade mark registration No 4953915 of the figurative mark ‘ROVICM Rovi Contract Manufacturing’, for goods and services in classes 5, 42 and 44; Spanish trade mark registration No 2509464 of the word mark ‘ROVIFARMA’, for goods and services in classes 5, 39 and 44; Spanish trade mark registration No 1324942 of the word mark ‘ROVI’, for goods in class 3; Spanish trade mark registration No 283403 of the word mark ‘ROVI’, for goods in classes 1 and 5; Spanish trade mark registration No 137853 of the figurative mark ‘ROVI’, for goods in class 3

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly found that there was likelihood of confusion as it has incorrectly appreciated the individual factors relevant to the global assessment, and (ii) omitted to perform the global assessment of the concerned marks.
EN Official Journal of the European Union C 130/21

Action brought on 3 March 2011 — Al-Faqih and Others v Commission

(Case T-134/11)

2011/C 130/41

Language of the case: English

Parties

Applicants: Al-Bashir Mohammed Al-Faqih (Birmingham, United Kingdom), Ghunia Abdrabbah (Birmingham, United Kingdom), Taher Nasuf (Manchester, United Kingdom), and Sanabel Relief Agency Ltd (Birmingham, United Kingdom) (represented by: E. Grieves, Barrister, and N. Garcia-Lora, Solicitor)

Defendant: European Commission

Form of order sought

— Annul Commission Regulation (EU) No 1139/2010 (1) and Commission Regulation (EU) No 1138/2010 (2) insofar as they relate to the applicants; and

— Order that the Council of the European Union pays, in addition to its own costs, those incurred by the applicants and any sums advanced by way of legal aid by the cashier of the Court of Justice.

Pleas in law and main arguments

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

1. First plea in law, alleging that the Commission has deliberately ignored binding case-law of the Court of Justice and failed to independently review the basis of the applicants’ designations or required any reasons for those designations.

2. Second plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 did not respect the right to judicial review and infringed the rights of the defence, thereby interfering with Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

3. Third plea in law, alleging that the conclusions reached in the Commission’s review concerning one of the applicants, Sanabel Relief Agency Ltd, are wrong and unsustainable in law.

4. Fourth plea in law, alleging that Commission Regulation (EU) No 1139/2010 and Commission Regulation (EU) No 1138/2010 are a disproportionate interference to all four applicants’ rights to property and their private life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. In addition, such legislation is irrational, particularly given the United Kingdom’s stance that the first three applicants no longer fulfil the relevant criteria.

(1) Commission Regulation (EU) No 1139/2010 of 7 December 2010 amending for the 141st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2010 L 322, p. 6)

(2) Commission Regulation (EU) No 1138/2010 of 7 December 2010 amending for the 140th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2010 L 322, p. 4)
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declare that, concerning the applicant, Mr Feh Lambert KESSE, Council Regulation (EU) No 25/2011 of 14 January 2011 and Council Decision 2011/18/CFSP of 14 January 2011, published on 15 January 2011 in the Official Journal of the European Union, are not justified in fact,
EN Official Journal of the European Union C 139/23

Action brought on 10 March 2011 — pelicantravel.com v OHIM — Pelikan (Pelikan)

(Case T-136/11)

2011/C 139/44

Language in which the application was lodged: Slovak

Parties

Applicant: pelicantravel.com (Bratislava, Slovak Republic) (represented by: M. Chlipala, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pelikan Vertriebsgesellschaft mbH & Co. KG (Hannover, Germany)

Form of order sought

— Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 December 2010 in Case R 1428/2009-2;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: figurative trade mark “Pelikan” for services in Classes 35 and 39 (Community trade mark no 3 325 941).

Proprietor of the Community trade mark: Pelikan Vertriebsgesellschaft mbH & Co. KG

Applicant for the declaration of invalidity of the Community trade mark: The Applicant

Grounds for the application for a declaration of invalidity: The applicant was acting in bad faith when filing the application for the trade mark [Article 52(1)(b) of Regulation (EC) No 207/2009 (1)].

Decision of the Cancellation Division: Application for declaration of invalidity dismissed.

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 52(1)(b) of Regulation No 207/2009, inasmuch as OHIM incorrectly assessed the facts, evidence and law, and thereby came to the incorrect conclusion that the trade mark in question was not lodged in bad faith.

(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 139/24

Action brought on 14 March 2011 — Zenato Azienda Vitivinicola v OHIM — Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (ZENATO RIPASSA)

(Case T-153/11)

2011/C 139/46

Language in which the application was lodged: Italian

Parties

Applicant: Zenato Azienda Vitivinicola Srl (Peschiera del Garda, Italy) (represented by: A. Rizzoli, 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: Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (Verona, Italy)

Form of order sought

The applicant claims that the Court should:

— declare the present action, together with the related annexes, admissible;

— annul the decision of the Board of Appeal (points 1, 2 and 3 of the operative part) in so far as it upholds the appeal, upholds the opposition and rejects in its entirety the application for registration, and orders the applicant to pay the costs incurred by the opposing party in the opposition and appeal proceedings;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘ZENATO RIPASSA’ (registration application No 5 848 015), for goods in Class 33 (alcoholic beverages)

Proprietor of the mark or sign cited in the opposition proceedings: La Camera di Commercio, Industria, Artigianato e Agricoltura di Verona

Mark or sign cited in opposition: Italian word mark ‘RIPASSO’ (No 682 213) for goods in Class 33 (‘Wines, spirits and liqueurs’)

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: To uphold the opposition and to reject in its entirety the application for registration

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/09.
EN Official Journal of the European Union C 145/36

Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’)

(Case T-178/11)

2011/C 145/61

Language in which the application was lodged: English

Parties

Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)

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 12 January 2011 in case R 785/2010-1; and

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a ‘bottle’, for goods in classes 32 and 33 — Community trade mark registration No 3156163

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Rejected the application for invalidity

Decision of the Board of Appeal: Declared the Community trade mark registration invalid

Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.
EN Official Journal of the European Union C 194/14

Action brought on 4 April 2011 — COMPLEX v OHIM — Kajometal (KX)

(Case T-206/11)

2011/C 194/22

Language in which the application was lodged: Polish

Parties

Applicant: COMPLEX S.A. (Łódź, Poland) (represented by: R. Rumpel, legal adviser)

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

Other party to the proceedings before the Board of Appeal: Kajometal s.r.o. (Dolny Kubin, Slovakia)

Form of order sought

— declare the action to be well founded;

— annul the decision delivered by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 21 January 2011 in Case R 864/2010-2;

— replace the contested decision by a decision refusing registration of the mark KX, No 61225405;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kajometal s.r.o.

Community trade mark concerned: word mark KX for goods in Class 7

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

Mark or sign cited in opposition: Community word mark CX, No 3 588 241, registered for goods in Class 7, Community figurative mark CX PRECISION BEARINGS, No 397 932 , registered for goods in Class 7

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of Article 8(1)(b) of Regulation No 207/2009, (1) in that there is a likelihood of confusion as between the conflicting marks.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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Pleas in support of the principal form of order sought: 1. First plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the provision enabling the carry forward of fiscal losses (‘the Sanierungsklausel’) does not constitute an exception within the relevant reference system. The German Government submits that the Sanierungsklausel laid down in Paragraph 8c(1a) of the German Law on corporation tax (Körperschaftssteuergesetz, ‘the KStG’), under which it is possible to carry fiscal losses forward in the case of undertakings which have been taken over with a view to their ‘turn-around’, is not selective. According to the German Government, this arrangement does not constitute a State aid scheme for the purposes of Article 107(1) TFEU, since the above provision does not introduce any exception to the relevant reference system. 2. Second plea in law, alleging infringement of Article 107(1) TFEU: manifest error of assessment relating to the general character of the measure. The German Government submits that the Commission made a manifest error of assessment with regard to the question whether the Sanierungsklausel laid down in Paragraph 8c(1a) of the KStG is a general measure, in so far as the Commission adopted an inappropriate approach to the analysis of that question and did not consider, in the context of an overall economic assessment, whether the Sanierungsklausel was based on ‘horizontal’ data which were equally valid for all undertakings; according to the German Government, the Sanierungsklausel is thus of benefit across the board to every undertaking on German territory and, in consequence, can be categorised as a general measure. 3. Third plea in law, alleging infringement of Article 107(1) TFEU: no selectivity owing to the fact that the Commission did not take into consideration the fact that the legislation at issue is justified by the nature and the internal structure of the German fiscal system. According to the German Government, the Sanierungsklausel laid down in Paragraph 8c(1a) of the KStG is not selective and, in consequence, does not amount to a State aid scheme for the purposes of Article 107(1) TFEU, since it is justified by the nature and the internal structure of the German fiscal system.
EN Official Journal of the European Union C 211/29

Action brought on 23 May 2011 — Pangyrus v OHIM — RSVP Design (COLOURBLIND)

(Case T-257/11)

2011/C 211/62

Language in which the application was lodged: English

Parties

Applicant: Pangyrus Ltd (York, United Kingdom) (represented by: S. Clubb, Solicitor)

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

Other party to the proceedings before the Board of Appeal: RSVP Design Ltd (Renfrewshire, United Kingdom)

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 23 March 2011 in case R 751/2009-4;

— Restore the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2009; and

— Award the costs in favour of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘COLOURBLIND’, for goods and services in classes 9, 16, 28, 35 and 41 — Community trade mark registration No 3337979

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on two grounds, namely Article 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009, by invoking an earlier unregistered right protected under the law of passing-off in the United Kingdom, as well as on the existence of bad faith in accordance with Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Declared the Community trade mark registration invalid in its entirety

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and rejected the request for declaration of invalidity

Pleas in law: The applicant considers that the Board of Appeal erred in law in finding that: (i) the Community trade mark proprietor did not act in bad faith when it applied for the Community trade mark; and (ii) the applicant had failed to prove that it had used an earlier sign in the course of trade before the date in which the contested Community trade mark was applied for.