ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 152/25

Action brought on 11 March 2011 — Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE)

(Case T-165/11)

2011/C 152/46

Language in which the application was lodged: English

Parties

Applicant: Stichting Regionaal Opleidingencentrum van Amsterdam (Amsterdam, Netherlands) (represented by: R.M.R. van Leeuwen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Investimust, S.A. (Geneva, Switzerland)

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 12 January 2011 in case R 508/2010-4; 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 word mark ‘COLLEGE’, for services in classes 39 and 43 — Community trade mark registration No 2645489

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 grounded its request on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 52(1)(a) in conjunction with Article 7(1)(c) and in conjunction with Article 7(1)(b) of Council Regulation No 207/2009, as also the Board of Appeal wrongly did not consider the evidence presented in appeal.
EN Official Journal of the European Union C 194/15

Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE)

(Case T-207/11)

2011/C 194/23

Language in which the application was lodged: German

Parties

Applicant: EyeSense AG (Basel, Switzerland) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal: Osypka Medical GmbH (Berlin, Germany)

Form of order sought

— Annul the order of the Fourth Board of Appeal of OHIM of 4 February 2011 in Appeal R 1098/2010-4;

— Order the defendant to pay the costs, including the costs of the appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Osypka Medical.

Community trade mark concerned: Word mark ‘ISENSE’ for goods and services in Classes 9, 10 and 42 — Registration No 7 165 327.

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

Mark or sign cited in opposition: National word mark ‘EyeSense’ for goods and services in Classes 10 and 42.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is a 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).
1.

First plea, divided into three limbs, claiming an error of law in the determination of the reasonable period applicable to the making of the application in the disputes between the EIB and its staff. — In the first limb, the appellants accuse the Civil Service Tribunal of giving incorrect scope to the case-law concerning the time-limits for EIB staff bringing an action, by abandoning de facto the rule that action must be brought within a reasonable period, which is by nature flexible and open to the balancing of the specific interests at stake, and substituting a strictly-applied and generalised time-limit of three months. — In the second limb, the appellants argue that, with regard to disputes between the EIB and its staff, no time-limit is laid down by the relevant provisions, whereas the Civil Service Tribunal applied by analogy the period of three months and ten days laid down by Article 91 of the Staff Regulations and Article 100(3) of the Rules of Procedure. — In the third limb, the appellants claim infringement of the principle of proportionality and their right to effective legal protection in so far as the Civil Service Tribunal described as unreasonable the time-limit observed by the appellants, which had a few seconds of difference by comparison with the reference time-limits applicable in relations under the Staff Regulations.
EN Official Journal of the European Union C 194/19

Action brought on 4 May 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

(Case T-232/11)

2011/C 194/31

Language of the case: English

Parties

Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

— Declare the Commission’s Decision of 1 March 2011 (Ares(2011)223668) contrary to Regulation No 1367/2006/EC (1);

— Annul the Commission’s Decision of 1 March 2011 (Ares(2011)223668);

— Instruct the Commission to assess the substance of the request for internal review of 20 December 2010, within a period of time determined by the Court;

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

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant was under an obligation to carry out the internal review of Directive 2010/77/EU (2), as requested by the applicants, on the ground that the said directive is not of general application, as the defendant stated, but rather an act containing concrete and individual decisions based on individual applications of the producers concerned.

2. Second plea in law, alleging that the contested decision is contrary to Regulation No 1367/2006/EC as Directive 2010/77/EU contains several administrative acts concerning individual decisions on individual applications. In addition, since the said directive has not been adopted in Commission’s legislative capacity, access to justice concerning such directive should be guaranteed.

(1) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)

(2) Commission Directive 2010/77/EU of 10 November 2010 amending Council Directive 91/414/EEC as regards the expiry dates for inclusion in Annex I of certain active substances (OJ 2010 L 293, p. 48)
EN Official Journal of the European Union C 226/29

Action brought on 16 June 2011 — Alumina v Council

(Case T-304/11)

2011/C 226/58

Language of the case: French

Parties

Applicant: Alumina d.o.o (Zvornik, Bosnia and Herzegovina) (represented by: J.-F. Bellis and B. Servais, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

— annul the anti-dumping duty imposed on the applicant by Council Implementing Regulation (EU) No 464/2011 of 11 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of zeolite A powder originating in Bosnia and Herzegovina;

— order the Council to pay the costs.

Pleas in law and main arguments

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

First, the applicant considers that the anti-dumping duty fixed in the contested regulation is unlawful since the method used to calculate the constructed normal value is in breach of Article 2(3) and (6) of the basic regulation. In the construction of the normal value, the defendant has used a profit margin of 58,89 % calculated on the basis of the applicant’s non-representative domestic sales. Use of such a profit margin is incompatible with Article 2 of the basic regulation. The construction of the normal value is affected by a fundamental contradiction since the method used by the defendant to construct the normal value obtains the same result as if the normal value had been based on the prices of the non-representative domestic sales. Such a method is contrary to the settled practice of the Commission and the Council and to the case-law of the General Court and the Court of Justice. Moreover, the chosen profit margin of 58,89 % is not ‘reasonable’. Lastly, the defendant is wrong to rely on case-law stemming from WTO rulings to apply a profit margin which is not ‘reasonable’ in the construction of the normal value applicable to the applicant’s exports.

Secondly, the applicant also considers that the method used to calculate the constructed normal value is in breach of the provisions of Article 2(6) of the basic regulation in that the applicant’s domestic sales were not made in the ‘ordinary course of trade’ within the meaning of the third subparagraph of Article 2(1) and the second subparagraph of Article 2(3) of the basic regulation.
EN Official Journal of the European Union C 238/29

Action brought on 14 June 2011 — Leopardi Dittajuti v OHIM — Llopart Vilarós (CONTE LEOPARDI DITTAJUTI)

(Case T-303/11)

2011/C 238/50

Language in which the application was lodged: English

Parties

Applicant: Piervittorio Francesco Leopardi Dittajuti (Numana, Italy) (represented by: D. De Simone, D. Demarinis, and G. Orsoni, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pedro Llopart Vilarós (Sant Sadurní D'Anoia, 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 6 April 2011 in case R 1437/2010-2, and consequently require the Office to take the necessary measures to comply with the given judgment; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CONTE LEOPARDI DITTAJUTI’, for goods and services in classes 33, 35, 40, and 43 — Community trade mark application No 6428338

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: Spanish trade mark registration No 2073540 of the figurative mark ‘Leopardi’, for goods in class 33

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

Decision of the Board of Appeal: Rejected the appeal as inadmissible

Pleas in law: Misinterpretation of article 60 of Council Regulation No 207/2009, of Rules 49(1), 20(7)(c) of Commission Regulation (EC) No 2868/95, applicable to the appeal proceedings pursuant to Rule 50(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal: (i) incorrectly deemed not to grant a suspension of the proceedings and postponing the deadline as jointly requested by the parties; (ii) incorrectly took into account the parties’ joint request only after the lapse of the deadline of submission of the statement of grounds, thus factually keeping the concerned party from submitting the same within the due date and causing the time-limit to expire; and (iii) infringement of the procedural requirements by the Board of Appeal, as it did not take into account the grounds of appeal, although the relevant statements had been submitted beyond the time-limit, also in breach of the general principle of procedural economy and of preservation of the validity of case-file records.
3.

The third plea claims failure to take account of other rules of the TFEU and secondary law. The applicant argues, first, that the tax on electronic communications is contrary to Article 110 TFEU; second, that the disputed taxes constitute a restriction on the freedom to provide services and the freedom of establishment in that the accumulation of specific taxes on the broadcasting and telecommunications sectors largely limits the possibility for broadcasting and telecommunications operators to carry on their economic activities in France; and, third, that the disputed measure is contrary to Directive 2002/20 of 7 March 2002 on the authorisation of electronic communications networks and services in so far as it places a tax on telecoms operators who do not comply with the conditions laid down by the directive.
EN Official Journal of the European Union C 238/34

Action brought on 21 June 2011 — Morelli v OHIM — Brambilla (Partito della Libertà)

(Case T-322/11)

2011/C 238/58

Language in which the application was lodged: Italian

Parties

Applicant: Raffaello Morelli (Livorno, Italy) (represented by: G.Brenelli, lawyer

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

Other party to the proceedings before the Board of Appeal: Michela Vittoria Brambilla (Milan, Italy

Form of order sought

The applicant claims that the Court should:

— annul the First Board of Appeal’s decision of 17 May 2011 and that of the Opposition Division of 14 May 2010;

— declare that the applicant’s opposition to the application for registration of a trade mark No 6.203.012 is upheld and refuse the application for that mark;

— order Ms Michela Vittoria Brambilli to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Michela Vittoria Brambilla.

Community trade mark concerned: Figurative mark containing the word element ‘Partito della Libertà’ (application for registration No 5.6203.012), for goods and services in classes 9, 14, 16, 24, 25, 35, 36, 38, 41, 42 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: Raffaello Morelli

Mark or sign cited in opposition: Domain name ‘partitodellaliberta.it’, assigned by the Autorità proposta all’assegnazione dei domini ‘it’ to Raffaello Morelli on 9 August 2004, which the opponents claimed was used in the course of trade for goods and services in classes 16, 35, 38, 41 and 45

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(4) of Regulation No 207/2009 on the Community trade mark, incorrect appraisal of ‘use in the course of trade’ with reference to a name used in the sphere of politics and incorrect appraisal of the documents proving business use of the earlier sign.
2.

Second plea, alleging infringement and misapplication of Article 107(1) TFEU as regards the definition of State aid The applicant maintains that the Commission erred in considering the two measures to be State aid, for neither case satisfies the requirements of advantage [that would not have been obtained] in ordinary market conditions, that threatens to distort competition, or of effect on trade between Member States. In particular: as regards the measure adopted pursuant to the decree of 2004, this confers no advantage for it is merely a subjective extension of the measure earlier considered by the Commission not to be aid in the ‘Alumix’ (1) case, in which the Commission decided that the electricity tariff applied to Alumix did not constitute an advantage for the latter. Furthermore, the measure adopted pursuant to the decree of 2004 is incapable of affecting intra-Community trade — so far as Eurallumina is concerned — because the alumina market is in deficit in the EU and any reduction of its activities would not be offset by an increase in exports by operators in other Member States, which are already working at full capacity; as regards the measure adopted pursuant to Law No 80/2005, this confers no advantage in relation to ordinary market conditions for, given the anomalies of the power market in Italy and, above all, in Sardinia — where the price of electricity is kept artificially high because there is no interconnection with the continent — the reference to the price reached at European level on stock markets constitutes a valid reference in order to regard the tariff applied as a ‘market’ tariff, for the activities of the beneficiaries. The considerations valid with regard to the measure adopted pursuant to the decree of 2004 hold good with regard to intra-Community trade too.
EN Official Journal of the European Union C 252/46

Action brought on 7 July 2011 — Stichting Greenpeace Nederland and PAN Europe v Commission

(Case T-362/11)

2011/C 252/97

Language of the case: English

Parties

Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands) and Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

— Declare that the Commission’s decision of 6 May 2011 is in violation of Regulation (EC) No 1049/2001 (1);

— Declare that the Commission’s decision of 6 May 2011 is in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Regulation (EC) No 1049/2001 and Regulation (EC) No 1367/2006 (2);

— Annul the Commission’s decision of 6 May 2011; and

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

Pleas in law and main arguments

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

1. First plea in law, alleging that the contested decision violates Article 8(1) and (2) of Regulation (EC) No 1049/2001 for not deciding within the prescribed time-limits on the applicants’ confirmatory application and not providing detailed reasons for doing so.

2. Second plea in law, alleging that the contested decision violates Article 4 of the Aarhus Convention, Article 4(2) and (5) of Regulation (EC) No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 for failure to assess, as: — the ground for refusal is not compliant with the Aarhus Convention; — the information requested qualifies as information relating to emissions into the environment; and — there is an overriding public interest in disclosure of the information requested by the applicants.

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

(2) Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)
EN Official Journal of the European Union C 252/37

Action brought on 17 June 2011 — Amador López v OHIM (AUTOCOACHING)

(Case T-325/11)

2011/C 252/83

Language of the case: Spanish

Parties

Applicant: Pedro Germán Amador López (Barcelona, Spain) (represented by A. Falcón Morales, lawyer)

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

Form of order sought

The applicant requests the General Court to find the present application and the accompanying documents to be duly lodged and admissible, to take note that an action has been brought against the Decision of 23 March 2011 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM), partially dismissing the appeal in Case R 1665/2010-2, and, consequently, to annul the said decision.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘AUTOCOACHING’ (application No 8.945.362), for goods and services in Classes 16, 41 and 45.

Decision of the Examiner: Application refused in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application and interpretation of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 269/50

Action brought on 20 June 2011 — Vinci Energies Schweiz v OHIM — Estavis (Yellow representation of the Brandenburg Gate)

(Case T-327/11)

2011/C 269/112

Language in which the application was lodged: German

Parties

Applicant: Vinci Energies Schweiz AG (Zurich, Switzerland) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: Estavis AG (Berlin, Germany)

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 31 March 2011 in Case R 231/2010-1;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Estavis AG

Community trade mark concerned: Representation of the Brandenburg Gate claiming the colour honey yellow for goods and services in Classes 6, 7, 9, 11, 35, 36, 37, 38, 40, 41 and 42 — application No 6 585 871

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

Mark or sign cited in opposition: the figurative mark ‘ETAVIS’ for goods and services in Classes 6, 7, 9, 11, 35, 37, 38, 40, 41, 42 and 45

Decision of the Opposition Division: the opposition was partially upheld

Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is likelihood of confusion between the marks at issue due to the at least average distinctive character of the mark on which the opposition is based and the identical nature or high degree of similarity of the signs at issue.