ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 193/28

Appeal brought on 16 June 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 31 March 2009 in Case F-146/07, Marcuccio v Commission

(Case T-239/09 P)

2009/C 193/45

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

In any event:

— Set aside in its entirety and without exception the order under appeal;

— Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever.

In the main:

— Allow in its entirety and without any exception whatsoever the relief sought at first instance, and order the Commission to reimburse the applicant in respect of all costs and fees incurred in relation to the present case at all stages of the proceedings.

In the alternative:

— Refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal has been brought against the order of 31 March 2009 in Case F-146/07 by which the Civil Service Tribunal (CST) dismissed, as partly inadmissible and partly unfounded, an action for annulment of the Commission’s decision not to follow up on the appellant’s request for an investigation into a postal package contaminated by anthrax, of which the applicant was a victim during the period when he was posted to the Commission’s delegation in Angola, as well as a claim for compensation in respect of the damage suffered as a result of that decision.

In support of his appeal, the appellant claims that the CST erred in law in the case of a number of statements that it made concerning the inadmissibility and the unfounded nature of the appellant’s submissions at first instance; the appellant also claims misrepresentation and distortion of the facts.
EN Official Journal of the European Union C 180/57

Action brought on 26 May 2009 — COR Sitzmöbel Helmut Lübke v OHIM — El Corte Inglés (COR)

(Case T-214/09)

2009/C 180/106

Language in which the application was lodged: German

Parties

Applicant: COR Sitzmöbel Helmut Lübke (Rheda-Wiedenbrück, Germany) (represented by Y-G. von Amsberg, 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: El Corte Inglés (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of 4 March 2009 (R 376/2008-2); and

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) 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: Word Mark ‘COR’ for goods in Clases 20 and 27 (International Registration No 839 721)

Proprietor of the mark or sign cited in the opposition proceedings: El Corte Inglés, SA

Mark or sign cited in opposition: Word Mark ‘CADENACOR’ (Community Trade mark No 2 362 598) for goods in Class 20

Decision of the Examiner: Refusal of Protection

Decision of the Board of Appeal: Dismissal of the Appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009 (1)), in as much as 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 205/42

Action brought on 24 June 2009 — Ralf Schräder v CPVO (Lemon Symphony)

(Case T -242/09)

2009/C 205/77

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal of OHIM: Jørn Hansson (Søndersø, Denmark)

Form of order sought

— Annul the decision of the Board of Appeal of CPVO of 23 January 2009;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Lemon Symphony

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

Decision of the Community Plant Variety Office, appealed against before the Board of Appeal: Refusal to annul Community plant variety right of for Lemon Symphony in accordance with Article 20(1)(a) of Council Regulation (EC) No 2100/94 (1)

Appellant before the Board of Appeal: the applicant

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law:

— Infringement of Article 76 of Regulation No 2100/94 and the generally recognised principles of procedure within the meaning of Article 81 of Regulation No 2100/94 insofar as the Board of Appeal ruled in the contested decision without sufficiently investigating the facts of the case;

— Infringement of Article 20(1)(a) and Article 7 of Regulation No 2100/94 insofar as the Board of Appeal apparently wrongly assumed that the applicant could not fulfil the conditions referred to in Article 20(1)(a) and accordingly, failed to appreciate the scope of that provision;

— Infringement of Article 75 of Regulation No 2100/94 insofar as the Board of Appeal based its ruling on grounds on which the applicant did not have an opportunity to express itself before the decision;

— Infringement of Article 63(1) and (2) of Regulation No 1239/95 (2) insofar as the essentials of the oral proceedings were not properly recorded.

(1) Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).

(2) Commission Regulation (EC) No 1239/95 of 31 May 1995 establishing implementing rules for the application of Council Regulation (EC) No 2100/94 as regards proceedings before the Community Plant Variety Office (OJ 1995 L 121, p. 37).
EN Official Journal of the European Union C 193/24

Action brought on 10 June 2009 — Feng Shen Technology v OHIM — Majtczak (FS)

(Case T-227/09)

2009/C 193/40

Language in which the application was lodged: English

Parties

Applicant: Feng Shen Technology Co. Ltd (Gueishan, Taiwan) (represented by: W. Festl-Wietek and P. Rath, lawyers)

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

Other party to the proceedings before the Board of Appeal: Jarosław Majtczak (Łódź, Poland)

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 1 April 2009 in case R 529/2008-4;

— Declare Community trade mark No 4 431 391 invalid; and

— Order OHIM to pay the costs incurred in the proceedings before the Court and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The mark “FS” for goods in class 26 — Community trade mark No 4 431 391

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

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Trade mark right of the party requesting the declaration of invalidity: Several earlier trade mark registrations for the figurative sign “FS” in Taiwan, China and Ghana in relation to zippers and related products

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 51(1)(b) of Council Regulation 40/94 (which became Article 52(1)(b) of Council Regulation 207/2009), as the Board of Appeal failed to properly evaluate the evidence and documents provided by the parties and failed to properly analyse the facts as a precondition for a finding that the trade mark application concerned was made in bad faith
EN Official Journal of the European Union C 220/35

Appeal brought on 6 July 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 28 April 2009 in Joined Cases F-5/05, Violetti and Others v Commission, and F-7/05, Schmit v Commission

(Case T-261/09 P)

2009/C 220/75

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by J. Currall and J.-P. Keppenne, Agents)

Other parties to the proceedings: Antonello Violetti (Cittiglio, Italy), Nadine Schmit (Ispra, Italy), Council of the European Union, Anna Bassi Perucchini (Reno di Leggiuno, Italy), Marco Basso (Varano Borghi, Italy), Ernesto Brognieri (Barasso, Italy), Sergio Brusorio (Sesto Calende, Italy), Natale Cao (Ispra), Renato Cazzaniga (Ispra), Elvidio Flammini (Varese, Italy), Luigi Magistri (Ispra), Reginella Molinari Canale (Ispra), Giuseppe Morelli (Besozzo, Italy), Nadia Valentini (Varese) and Giuseppe Zara (Ispra)

Form of order sought by the appellant

The appellant claims that the Court of First Instance should:

— set aside the judgment of 28 April 2009 in Joined Cases F-5/05 and F-7/05 Violetti and Others v Commission, in so far as it declared admissible the actions for annulment of the decision of the European Anti-Fraud Office (OLAF) to communicate certain information to the Italian authorities;

— adjudicate the present cases itself, declaring the actions brought before the Civil Service Tribunal to be inadmissible;

— order the respondents to pay the costs of the proceedings, including those incurred in the proceedings before the Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, the Commission seeks to have set aside the judgment of 28 April 2009 in Joined Cases F-5/05 and F-7/05 Violetti and Others v Commission, by which the Civil Service Tribunal annulled OLAF’s decision to communicate information concerning the respondents to the Italian judicial authorities and ordered the Commission to pay each of the respondents the sum of EUR 3 000 by way of damages.

In support of its appeal, the Commission relies on a single plea in law, alleging infringement of Article 90a of the Staff Regulations of Officials of the European Communities, in so far as the Civil Service Tribunal was in breach of Community law and proceeded on the basis of unsound grounds in disregarding the established case-law to the effect that actes préparatoires — such as the opening of an OLAF investigation, OLAF’s final report and the commencement of disciplinary proceedings — are not acts which have adverse effects for the purposes of providing grounds of complaint. The Commission argues that this case-law can be transposed to Article 90a of the Staff Regulations as regards the possibility of submitting a complaint against acts of OLAF.
EN Official Journal of the European Union C 220/34

Action brought on 7 July 2009 — Commission v Arci Nuova Associazione Comitato di Cagliari and Gessa

(Case T-259/09)

2009/C 220/73

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by M. Moretto, lawyer, and A.M. Rouchaud-Joët and N. Bambara, Agents)

Defendant: Arci Nuova Associazione Comitato di Cagliari (Cagliari, Italy), Alberto Gessa (Cagliari, Italy)

Form of order sought

— An order that Arci Nuova Associazione Comitato di Cagliari and Alberto Gessa should, in their personal capacities and jointly and severally, repay the principal sum of EUR 15 675,00 owing, together with default interest at the rate of 7,32 %, running from 20 May 2007 until full and final payment of the sum owed;

— an order that Arci Nuova Associazione Comitato di Cagliari and Alberto Gessa should, in their personal capacities and jointly and severally, pay the costs.

Pleas in law and main arguments

By this action the applicant seeks an order that the abovementioned association and, jointly, its chairman, should pay a sum equivalent to the advance paid by the applicant for performance of the action ‘ONG-2003-204-Cagliari-ARCI-l’Europa dei Migranti’. That action consists of a series of IT and documentation activities in the languages of the various countries of provenance, relating to the European institutions, the decision-making process, the stages in building and enlarging Europe, for the purpose of making the integration of migrants easier.

The agreement imposed an obligation to send, within a certain period, the final report regarding the performance of the action, the final financial accounts of the eligible costs actually incurred, and the full statement of the income and expenditure relating to the action.

That obligation not having been fulfilled, the Commission has decided to bring this action.
EN Official Journal of the European Union C 244/7

Action brought on 24 July 2009 — Omnicare v OHIM — Astellas Pharma (formerly Yamanouchi Pharma) (OMNICARE)

(Case T-290/09)

2009/C 244/12

Language in which the application was lodged: English

Parties

Applicants: Omnicare, Inc. (Covington, United States) (represented by: M. Edenborough, Barrister)

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

Other party to the proceedings before the Board of Appeal: Astellas Pharma GmbH (formerly Yamanouchi Pharma GmbH) (Heidelberg, Germany)

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 14 May 2009 in case R 402/2008-4; and

— Award the applicant the costs incurred in connection with this appeal before the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘OMNICARE’, for services in class 42

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: German trade mark registration of the mark ‘OMNICARE’ for services in classes 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark applied for

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 207/2009 as the Board of Appeal wrongly held that: (a) the trade marks concerned were similar; (b) that there was genuine use of the trade mark cited in the opposition proceedings; (c) that the services for which genuine use had been shown were similar; and (d) that, as a consequence, there existed a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 244/15

Action brought on 11 August 2009 — Google v OHIM (ANDROID)

(Case T-316/09)

2009/C 244/25

Language of the case: English

Parties

Applicant(s): Google, Inc. (Mountain View, United States) (represented by A. Bognár and M. Kinkeldey, lawyers)

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

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 26 May 2009 in case R 1622/2008-2; and

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

Auxiliarily, the applicant requests to:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 May 2009 in case R 1622/2008-2 with regard to the goods ‘computer hardware and computer software for use in connection with mobile devices, namely cell phones, mobile phones, smart phones and handheld personal digital assistants (PDAs)’; and

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

Auxiliarily, the applicant requests to:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 May 2009 in case R 1622/2008-2 and remit the case to OHIM for further examination of the list of goods ‘computer hardware and computer software for use in connection with mobile devices, namely cell phones, mobile phones, smart phones and handheld personal digital assistants (PDAs)’.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ANDROID’ for goods in class 9

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation 207/2009 as the Board of Appeal wrongly concluded that the trade mark applied for was descriptive for the goods at issue and thus could not be registered; infringement of Article 7(1)(b) of Council Regulation 207/2009 as the Board of Appeal erred by not proceeding to examine the perception of the English speaking public with respect to the applicability of this provision.
EN Official Journal of the European Union C 256/33

Action brought on 27 August 2009 — Consejo Regulador de la Denominación de Origen Txakoli de Álava and Others v OHIM (TXAKOLI)

(Case T-341/09)

2009/C 256/59

Language of the case: Spanish

Parties

Applicants: Consejo Regulador de la Denominación de Origen Txakoli de Álava (Amurrio, Spain), Consejo Regulador de la Denominación de Origen Txakoli de Bizkaia (Leoia, Spain), Consejo Regulador de la Denominación de Origen Txakoli de Getaria (Getaria, Spain) (represented by J. Grimau Muñoz and J. Villamor Muguerza, lawyers)

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

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 4 June 2009 in Case R 197/2009-2 and allow the application for registration of ‘TXAKOLI’ as a Community trade mark (collective word mark) for Classes 33, 35, 41 and 42.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Collective word mark ‘TXAKOLI’ (Application No 6 952 014) for goods and services in Classes 33, 35, 41 and 42.

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 7(1)(c) of Regulation No 207/2009 inasmuch as that provision is not applicable to the term ‘Txakoli’ since the latter is considered to be a traditional term by Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products. (1)

(1) OJ 2002 L 118, p. 1.
EN Official Journal of the European Union C 256/34

Action brought on 31 August 2009 — Hearst Communications v OHIM — Vida Estética (COSMOBELLEZA)

(Case T-344/09)

2009/C 256/61

Language in which the application was lodged: English

Parties

Applicants: Hearst Communications, Inc. (New York, United States) (represented by: A. Nordemann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Vida Estética, S.L. (Barcelona, 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 4 June 2009 in case R 770/2007-2; and

— Order the defendant to pay the costs

Pleas in law and main arguments

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

Community trade mark concerned: The word mark “COSMOBELLEZA”, for goods and services in classes 35 and 41

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

Mark or sign cited: French trade mark registration of the mark “COSMOPOLITAN” registered for goods in class 16; International trade mark registration of the mark “COSMO TEST” registered for goods and services in classes 25, 38 and 41; Portuguese trade mark registration of the mark “COSMO” registered for services in class 41; international trade mark registration of the mark “COSMOPOLITAN TELEVISION” registered for goods and services in classes 38 and 41; international trade mark registration of the mark “COSMOPOLITAN” registered for services in classes 35 and 39; United Kingdom trade mark registration of the mark “COSMOPOLITAN” registered for services in classes 35 and 39; United Kingdom trade mark registration of the figurative mark “THE COSMOPOLITAN SHOW” registered for services in classes 35 and 41; United Kingdom trade mark registration of the mark “COSMO” registered for services in classes 35 and 41; United Kingdom trade mark registration of the mark “COSMOPOLITAN TELEVISION” registered for services in classes 38 and 41; Irish trade mark registration of the mark “COSMOPOLITAN TELEVISION” registered for services in classes 38 and 41; well known trade marks “COSMO” and “COSMOPOLITAN” in all the Member States for goods and services in classes 16, 28 and 41; non-registered trade marks “COSMO” and “COSMOPOLITAN” used in all the Member States for goods and services in classes 16, 28 and 41, as well as the trade names “COSMO” and “COSMOPOLITAN” used in all the Member States for goods and services in the same classes.

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that the trade marks concerned are not similar, that the goods and services in question are not similar and thus that there was no likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 267/78

Action brought on 16 September 2009 — Commission v Association Fédération Club B2A

(Case T-356/09)

2009/C 267/139

Language of the case: French

Parties

Applicant: Commission of the European Communities (Étupes, France) (represented by: A.-M. Rouchaud-Joët and N. Bambara, acting as Agents, and E. Bouttier, lawyer)

Defendant: Association Fédération Club B2A

Form of order sought

— order the Fédération, represented by its President, to pay to the applicant the amount of … euros … corresponding to the principal sum of EUR 62 500 and the sum of … euros … in late-payment interest falling due on …;

— order the Fédération to pay the sum of EUR 7 000 in order to cover the costs incurred by the Commission in recovering its debt;

— order the Fédération to pay the costs of the present case.

Pleas in law and main arguments

The European Community, represented by the Commission, concluded a grant contract in respect of a project for the ‘creation and operation of a federation of regional networks of Business Angels for Eastern France’. The project, during which the Commission paid, as an advance, the sum of EUR 62 500 to the defendant, was completed on 30 September 2002.

In that contract, the defendant undertook, inter alia, to provide a final report. Since an incomplete report was provided, the Commission put the defendant on formal notice to produce a report that met the objectives. Since that letter of formal notice and numerous other letters went unanswered by the defendant, the Commission sent a debit note and then an order for recovery of the amount of EUR 62 500 to the defendant.

Since that debt remains unpaid, the Commission is seeking an order that the defendant pay the sum due and the losses suffered in order to cover the entirety of the expenses which the Commission has had to incur in order to recover its debt, submitting that a) the defendant has failed to fulfil its obligations laid down in the contract by failing to submit a full final report and b) payment of the sum of EUR 62 500 by the Commission was made as an advance pending acceptance of the final report.