ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 355/31

Action brought on 5 September 2012 — Lidl Stiftung v OHIM — Unipapel Industria Comercio y Servicios (UNITED OFFICE)

(Case T-391/12)

2012/C 355/66

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Wolter and S. Paul, lawyers)

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

Other party to the proceedings before the Board of Appeal: Unipapel Industria Comercio y Servicios, SL (Tres Cantos, Spain)

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 21 June 2012 in case R 745/2011-1; 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 figurative mark ‘UNITED OFFICE’, for goods in classes 9, 16 and 20 — Community trade mark application No 7454606

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 request for a declaration of invalidity was based on the grounds laid down in Article 53(1) of Council Regulation No 207/2009, and on Community trade mark registration No 1445832 of the word mark ‘UNIOFFICE’, for goods in class 16

Decision of the Cancellation Division: Revoked the challenged Community trade mark in respect of part of the goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

— Infringement of Article 15(1) in combination with Article 42(2) and (3) of Council Regulation No 207/2009 and Rule 22(3) and (4) of Commission Regulation No 2868/95
EN Official Journal of the European Union C 355/29

Action brought on 24 August 2012 — Kampol v OHIM — Colmol (Nobel)

(Case T-382/12)

2012/C 355/62

Language in which the application was lodged: English

Parties

Applicant: Kampol sp. z o.o. (Świdnica, Poland) (represented by: J. Kępiński, lawyer)

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

Other party to the proceedings before the Board of Appeal: Colmol-Colchões, SA (Oliveira de Azeméis, Portugal)

Form of order sought

— Accept the appeal and annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 June 2012 in case R 2286/2011-4;

— Reject in its entirety the opposition No B 1762742 (Community trade mark application No 9080078);

— Order OHIM to register the trade mark applied for;

— Order OHIM to bear the costs of the proceedings; and

— Alternatively, refer back the case to the Fourth Board of Appeal to hear the case once again, in accordance with the binding criteria established by the Court of Justice.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘Nobel’ in colours black, gold and red, for goods in classes 10 and 24 — Community trade mark application No 9080078

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: Portuguese trade mark registration No 373184 of the word mark ‘NOBEL’, for goods in class 20

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) Council Regulation No 207/2009.
EN Official Journal of the European Union C 373/6

Action brought on 21 September 2012 — SFC Jardibric v OHIM — Aqua Center Europa (AQUA FLOW)

(Case T-417/12)

2012/C 373/11

Language in which the application was lodged: French

Parties

Applicant: SFC Jardibric (St Jean de la Ruelle, France) (represented by: J.-L. Fourgoux, lawyer)

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

Other party to the proceedings before the Board of Appeal: Aqua Center Europa, SA (Madrid, Spain)

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 20 July 2012 in Case R 2230/2010-4, rejecting the appeal against the decision of the Cancellation Division of 16 September 2010;

— Order OHIM 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 mark including the word element ‘AQUA FLOW’ for goods in Classes 6, 7, 9, 11, 17, 19 and 21 — Community trade mark No 1162064

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: Aqua Center Europa, SA

Grounds for the application for a declaration of invalidity: Figurative national mark including the word element ‘VAQUA FLOW’ for goods in Class 11

Decision of the Cancellation Division: Granting the application for cancellation

Decision of the Board of Appeal: Rejecting the appeal

Pleas in law: Infringement of Article 54(2) of Regulation No 207/2009; Absence of likelihood of confusion as to the goods; Absence of confusion between the signs.
EN Official Journal of the European Union C 343/18

Action brought on 11 September 2012 — Intrasoft International v Commission

(Case T-403/12)

2012/C 343/31

Language of the case: English

Parties

Applicant: Intrasoft International SA (Luxembourg, Luxembourg) (represented by: S. Pappas, lawyer)

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 2012 (ref.: RH(2012)3471), as well as the implicit rejection of the applicant’s complaint of 10 August 2012 against such decision, so that the applicant will be allowed to participate in the subsequent stages of the tender;

— Order the defendant to pay the costs of the present application.

Pleas in law and main arguments

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

1. First plea in law, alleging infringement of the terms of reference and the principle of good administration. More specifically, the applicant sustains that the additional information-clarifications given by the contracting authority to all tenderers following the tender procedure completed the terms of reference, formed part of the legal framework that governs the tender in question and subsequently was binding on all parties, the contracting authority included. Such terms have in the case at hand been infringed by the defendant.

2. Second plea in law, alleging an infringement of Article 94 of the Financial Regulation (1), as: — The applicant was excluded from the tendering procedure on the ground of conflict of interest without having been given the opportunity to prove and support evidence that there was not such a case; — The administration failed to assess and substantiate that the previous involvement of the applicant in another tender could have an impact on the tender in question.

(1) 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)
—

In the applicant’s view, the classification of the measure at issue as State aid compatible with the internal market infringes Articles 107 TFEU and 108 TFEU. The applicant explains in that regard that no remuneration at market rates is paid for the measure at issue, nor does it have an impact on financial stability or bank lending in the implementing Member State (in this case Austria), or rather the Republic of Austria cannot exercise appropriate supervision in another Member State in respect of the achievement of any objectives that may have been set.
—

In the context of the fourth plea, the applicant submits that the Commission infringed Article 107(1) TFEU in so far as it takes the view that the schedule of charges confers State aid. According to the applicant, the Commission was not entitled to infer the selectivity of the schedule of charges from the fact that the schedule applied only to airport users. Further, the applicant takes the view that the Commission should not have found that the schedule of charges was a State measure, as the majority of shares in the applicant were privately owned at the time when the schedule of charges was issued.
—

The applicant maintains that the European Commission is unjustified in contending that it lacks competence to submit a proposal for the adoption of a legal measure relating to the proposed initiative concerning establishment of the ‘principle of the state of necessity’. Under Article 122(1) TFEU (ex Article 100 EC), the Commission proposes (and the Council decides upon), in a spirit of solidarity between Member States, the measures appropriate to the economic situation. Such measures include the laying down of the principle of the state of necessity in the treaties of the European Union and the adoption of measures and policies to that effect.
EN Official Journal of the European Union C 26/54

Action brought on 9 November 2012 — Grupo Bimbo v OHIM (SANISSIMO)

(Case T-485/12)

2013/C 26/109

Language of the case: Spanish

Parties

Applicant: Grupo Bimbo, SAB de CV (Mexico, Mexico) (represented by N. Fernández Fernández-Pacheco, lawyer)

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

Form of order sought

The applicant claims that the General Court should find the present application and the accompanying documents to be duly lodged and admissible, take note that an action has been brought against the Decision of 29 August 2012 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) in Case R 1218/2011-2 and, following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs and, consequently, register Community trade mark application No 9.274.119 SANISSIMO.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘SANISSIMO’ for goods in Classes 29 and 30 — Community trade mark application No 9 274 119

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 and of Article 7(3) of that regulation.
EN Official Journal of the European Union C 389/8

Action brought on 30 October 2012 — Novartis Europharm v Commission

(Case T-472/12)

2012/C 389/13

Language of the case: English

Parties

Applicant: Novartis Europharm (Horsham, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the European Commission C(2012) 5894 final of 16 August 2012 to grant a marketing authorisation to Teva Pharma BV, in accordance with Article 3 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1); and

— Order the defendant to pay its own costs and those of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the contested decision is unlawful in that it constitutes an infringement of the data protection rights of Novartis Europharm Ltd. for its product Aclasta pursuant to Articles 13(4) of Regulation (EC) No 2309/93 (1), read in conjunction with Article 89 of Regulation (EC) No 726/2004. As Aclasta was granted a separate independent marketing authorisation through the centralised procedure, the Aclasta authorisation does not fall under the same global marketing authorisation as Zometa (another product of Novartis Europharm Ltd), as specified in article 6(1) of Directive 2001/83/EC (2) for the purposes of data protection.

In addition, the contested decision is unlawful in that it constitutes an infringement of Article 10(1) of Directive 2001/83/EC as data protection for the reference medicinal product Aclasta has not expired and hence the conditions for granting a marketing authorisation under this article have not been complied with.

(1) Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214, p. 1)

(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)
EN Official Journal of the European Union C 26/63

Action brought on 19 November 2012 — Compagnie des montres Longines, Francillon v OHIM — Cheng (B)

(Case T-505/12)

2013/C 26/125

Language in which the application was lodged: English

Parties

Applicant: Compagnie des montres Longines, Francillon SA (Saint-Imier, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

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

Other party to the proceedings before the Board of Appeal: Xiuxiu Cheng (Budapest, Hungary)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 September 2012 in case R 193/2012-5; and.

— Order the Defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark in black and white ‘B’, for goods in classes 9 and 25 — Community trade mark application No 8483562

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

Mark or sign cited in opposition: International trade mark registration No 401319 of the figurative mark representing a device of extended wings with a geometric design in the middle, for goods in classes 7, 9 and 14

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 26/64

Action brought on 16 November 2012 — Advance Magazine Publishers v OHIM — Nanso Group (TEEN VOGUE)

(Case T-509/12)

2013/C 26/127

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: C. Aikens, Barrister)

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

Other party to the proceedings before the Board of Appeal: Nanso Group Oy (Nokia, Finland)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 September 2012 in case R 147/2011-4 and reject the opposition; and

— Order the opponent to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TEEN VOGUE’, for among others goods in class 25 — Community trade mark application No 3529476

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: Swedish trade mark registration No 126124 of the word mark ‘VOGUE’, for goods in class 25; Swedish trade mark registration No 43934 for the figurative sign ‘Vogue’, for goods in class 25; Finish trade mark application No T 199 803 628 for the word mark ‘VOGUE’, for goods in class 25; Registered auxiliary trade name ‘VO Gue’

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation No 207/2009.
EN Official Journal of the European Union C 32/25

Action brought on 8 December 2012 — Still v OHIM (Truck Data Services)

(Case T-535/12)

2013/C 32/40

Language of the case: German

Parties

Applicant: Still GmbH (Hamburg, Germany) (represented by S. Waller, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2012 in Case R 4/2012-1;

— Order the defendant to pay the costs;

— Join the case under Article 50(1) of the Rules of Procedure of the General Court with the action brought in parallel against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Case R 130/2012-1, also of 10 September 2012, regarding the Community trade mark application ‘Fleet Data Services’, application No 009931387.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark including the word elements ‘Truck Data Services’ for goods and services in Classes 9, 12, 35, 36, 37 and 39 — Community trade mark application No 9 931 429

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

— Infringement of Article 7(1)(c) of Regulation No 207/2009

— Infringement of Article 7(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 32/21

Action brought on 27 November 2012 — Spirlea v Commission

(Case T-518/12)

2013/C 32/33

Language of the case: German

Parties

Applicants: Darius Nicolai Spirlea (Capezzano Pianore, Italy) and Mihaela Spirlea (Capezzano Pianore) (represented by: V. Foerster and T. Pahl, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

— accept the present application made on the basis of Article 263 TFEU;

— declare the action admissible;

— declare the action to be founded and, accordingly, that the defendant committed significant procedural errors and made other substantive errors of law;

— on that basis, annul the Commission’s decision of 27 September 2012 to bring an end to EU pilot procedure No 2070/11/SNCO (Ref. Ares [2012] 1135073);

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1. First plea in law: setting up an EU pilot procedure without any legal basis (Articles 290 and 291 TFEU) — In the context of this plea, the applicants submit that the launching of an EU pilot procedure amounts to an additional procedural requirement to Article 258 TFEU. This procedural requirement — for which the Commission does not have any power or delegated power under the Treaties — has been used contrary to the rule of law and in a non-transparent procedure which, moreover, undermines the procedure for failure to fulfil obligations laid down in Article 258 TFEU.

2. Second plea in law: infringement of the Commission communication of 20 March 2002 to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law. (1) — In this regard, the applicants submit that the Commission arbitrarily bypassed its communication on relations with the complainant in respect of infringements of Community law and, without offering any alternative, transferred the applicants’ complaints to the EU pilot procedure, the rules of which are not accessible to the applicants.

3. Third plea in law: infringement of the duty to state reasons — In this context, they complain that the Commission’s grounds do not contain any clarification of the facts in relation to the application of Regulation (EC) No 1394/2007 (2) and do not address the specific legal complaints made by the applicants in connection with EU law.

(1) OJ 2002 C 244, p. 5.

(2) Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 (OJ 2007 L 324, p. 121).
EN Official Journal of the European Union C 63/22

Action brought on 21 December 2012 — Oracle America/OHMI — Aava Mobile (AAVA MOBILE)

(Case T-554/12)

2013/C 63/43

Language in which the application was lodged: English

Parties

Applicant: Oracle America, Inc. (Wilmington, United States) (represented by: M. 2Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: Aava Mobile Oy (Oulu, Finland)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market in case R 1205/2011-2 dated October 9, 2012;

— Order the costs of the proceedings to be borne by the defendant.

Pleas in law and main arguments

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

Community trade mark concerned: the word mark ‘AAVA MOBILE’, for goods and services in classes 9, 38 and 42 — Community trade mark application No 8 715 385)

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

Mark or sign cited in opposition: Community trade mark registration No 6 551 626 for goods and services in classes 9, 16, 35, 37, 38, 41, 42 et 45

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and (5) of Council Regulation No 207/2009.