ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 220/40

Action brought on 17 July 2009 — CEVA v Commission

(Case T-285/09)

2009/C 220/85

Language of the case: French

Parties

Applicant: Centre d’Étude et de Valorisation des Algues SA (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court of First Instance should:

— declare that no statement of reasons has been provided for the enforcement orders for four debit notes of the European Commission, dated 11 May 2009: No 3230901933, No 3230901935, No 3230901936 and No 3230901937;

— declare that there is a likelihood of unjust enrichment on the part of the Commission in the event that CEVA refunds the amount of EUR 173 435 together with default interest;

— in consequence, annul the enforcement orders for the four debit notes dated 11 May 2009, namely, No 3230901933, No 3230901935, No 3230901936 and No 3230901937;

— lastly, declare that the Commission has failed to comply with the terms and conditions of the ‘SEAPURA’ contract, namely Contract No Q5RS-2000-31334;

— declare that the Commission has failed, in particular, to comply with Article 22(5)(3) and Article 3.5 of Annex II to Contract No Q5RS-2000-31334;

— in consequence, annul the enforcement orders for the four debit notes dated 11 May 2009, namely, No 3230901933, No 3230901935, No 3230901936 and No 3230901937.

Pleas in law and main arguments

By the present action, CEVA is seeking annulment of the enforcement orders by which the Commission demanded full reimbursement of the advance payments made to CEVA in the context of the SEAPURA Contract (No Q5RS-2000-31334) concerning a research and technological development project.

In support of its action, CEVA relies on three pleas in law:

— failure to provide an adequate statement of reasons, in so far as the Commission based its position on the allegation that CEVA was in breach of its contractual obligations but did not set out the factual and legal grounds for that allegation;

— breach of the principle that there should be no unjust enrichment since, if the sum claimed by the Commission were to be refunded in full, the Commission would be unjustly enriched in that the work and research carried out by CEVA would be available to the Commission without it having to pay for it;
EN Official Journal of the European Union C 244/11

Action brought on 31 July 2009 — Tilda Riceland v OHIM — Siam Grains (BASMALI LONG GRAIN RICE RIZ LONG DE LUXE)

(Case T-304/09)

2009/C 244/18

Language in which the application was lodged: English

Parties

Applicants: Tilda Riceland Ltd (Gurgaon, India) (represented by: S. Malynicz, Barrister, D. Sills and N. Urwin, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Siam Grains Company Limited (Bangkok, Thailand)

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 19 March 2009 in case R 513/2008-1; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant

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 figurative mark ‘BASMALI LONG GRAIN RICE RIZ LONG DE LUXE’, for goods in class 30

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

Mark or sign cited: A non-registered trade mark of the word ’BASMATI” used for rice and a sign consisting of the word ‘BASMATI’ used in the course of trade designating a class of goods, namely rice

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(4) Council Regulation 207/2009 as the Board of Appeal wrongly based its decision solely upon an interpretation of the provision which fails to take into account national rules and judicial decisions delivered in the Member State concerned; secondly, the Board of Appeal failed to apply the law of a Member State, namely the United Kingdom, in relation to the form of action known as the ‘extended form of passing off’; thirdly, the Board of Appeal erred in requiring that the applicant must hold proprietary rights to the sign ‘BASMATI’; finally, the Board of Appeal erred in holding that the word ‘BASMATI’ is generic.
EN Official Journal of the European Union C 244/13

Action brought on 4 August 2009 — Fuller & Thaler Asset Management v OHIM (BEHAVIOURAL INDEXING)

(Case T-310/09)

2009/C 244/22

Language of the case: English

Parties

Applicant(s): Fuller & Thaler Asset Management, Inc. (San Mateo, United States) (represented by S. Malynicz, Barrister)

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

Form of order sought

— Annul the decision of the Grand Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 April 2009 in case R 323/2008-G; and

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BEHAVIOURAL INDEXING’ for goods and services in classes 9 and 36

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 (i) erred in relation to the meaning and syntax of the mark, as well as its aptness or otherwise as an immediate and direct descriptive term for the goods and services in question; (ii) failed to establish facts of its own motion that would show that the Community trade mark concerned was descriptive to the relevant public, even though it correctly concluded that the relevant public was specialised; and (iii) failed to take account of the public interest that underlies this ground for refusal and failed to establish on the evidence that there was, in the relevant specialised sphere, a reasonable likelihood that other traders in that sphere would wish to use the Community trade mark concerned in the future.
EN Official Journal of the European Union C 267/81

Action brought on 17 September 2009 — Michalakopoulou Ktimatiki Touristiki v OHIM — Free (FREE)

(Case T-365/09)

2009/C 267/144

Language in which the application was lodged: English

Parties

Applicants: Michalakopoulou Ktimatiki Touristiki AE (Athens, Greece) (represented by: A. Koliothomas and K. Papadiamantis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Free SAS (Paris, France)

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 11 June 2009 in case R 1346/2008-1;

— Dismiss the opposition;

— Order the defendant to bear the costs before the Court of First Instance; and

— Order the other party to the proceedings before the Board of Appeal to bear the costs incurred in such proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “FREE”, for goods in class 16

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: French trade mark registration of the word mark “FREE” for services in class 38; French trade mark registration of the figurative mark “FREE — LA LIBERTÉ N’A PAS DE PRIX” for services in classes 35 and 38

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the Community trade mark application in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned; infringement of Article 75 of Council Regulation 207/2009 as the Board of Appeal failed to state reasons for its finding that there was similarity between the goods in class 16 covered by the Community trade mark concerned and services in class 38 covered by the earlier trade mark.
EN Official Journal of the European Union C 267/73

Action brought on 27 August 2009 — Müller-Boré & Partner v OHIM — Popp and Other (MBP)

(Case T -338/09)

2009/C 267/132

Language in which the application was lodged: German

Parties

Applicant: Müller-Boré & Partner (Munich, Germany) (represented by: C. Osterrieth and T. Schmitz, lawyers)

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

Other parties to the proceedings before the Board of Appeal of OHIM: E. Popp (Munich, Germany), W. E. Sajda (Munich), J. Bohnenberger (Munich), V. Kruspig (Munich)

Form of order sought

— Annulment the decision of the Fourth Board of Appeal of OHIM of 23 June 2009 in Case R 1176/2007-4 and amendment of it so as to reject the appeal and objection in their entirety;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: the word mark ‘MBP’ for services in Classes 35 and 42 (Application No. 1 407 857)

Proprietor of the mark or sign cited in the opposition proceedings: E. Popp, W. E. Sajda, J. Bohnenberger and V. Kruspig

Mark or sign cited in opposition: the word mark ‘ip_law@mbp.’ for services in Class 42 (Community Trademark No. 667 105) and the special trade name ‘mbp.de.’ under German trade mark law

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Opposition upheld in part

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1),] since there is no likelihood of confusion between the trade 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 282/55

Action brought on 21 September 2009 — Visti Beheer BV v OHIM — Meister (GOLD MEISTER)

(Case T-372/09)

2009/C 282/104

Language in which the application was lodged: German

Parties

Applicant: Visti Beheer BV (Rotterdam, Nethrerlands) (represented by: A. Herbertz, 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: Meister + Co. AG (Wollerau, Switzerland)

Form of order sought

— Vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 26 June 2009 (Case R 1465/2008-1) so that it annuls the decision of the Office for Harmonisation in opposition procedure B 1 134 651 and grants the Community trade mark application No 5 243 209 for the contested goods;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark ‘GOLD MEISTER’ in respect of goods and services in Classes 3, 14, 16, 35, 37, 40 and 42 (Application No 5 243 209)

Proprietor of the mark or sign cited in the opposition proceedings: Meister + Co. AG

Mark or sign cited in opposition: the German word mark No 39 534 716 and the Community mark No 2 607 737‘MEISTER’ for goods in Class 14, whereas the opposition is directed solely against the registration for goods in that Class

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 Regulation (EC) No 207/2009 (1) as there is no likelihood of confusion between the conflicting trade 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 297/28

Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission

(Case T-396/09)

2009/C 297/41

Language of the case: Dutch

Parties

Applicants: Vereniging Milieudefensie (Amsterdam, Netherlands) and Stichting Stop Luchtverontreiniging Utrecht (Utrecht, Netherlands) (represented by: A. van den Biesen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— declare the action brought by the applicants to be well founded;

— set aside Commission Decision C(2009) 6121 of 28 July 2009, which is contested in this case;

— order the Commission to examine, as to its substance, the request for an internal review within a period to be determined by the Court of First Instance;

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

Pleas in law and main arguments

The applicants are two Netherlands environmental organisations which, on the basis of Article 10(1) of Regulation No 1367/2006, (1) requested the defendant to carry out a review of the earlier Commission Decision C(2009) 2560 of 7 April 2009, by which the Commission had authorised the Netherlands to defer to a later date compliance with its obligations under Directive 2008/50/EC (2) in respect of improvements to air quality. The applicants are challenging the Commission’s decision to declare inadmissible their request for a review of the earlier decision addressed to the Netherlands.

In support of their application, the applicants submit, first, that, in the contested decision, the Commission did not invoke the restriction of the scope of Regulation No 1367/2006 set out in Article 2(1)(c) and that, as a consequence, it did not adopt the decision of 7 April 2009 while acting in a legislative capacity.

The applicants also contend that the decision of 7 April 2009 is individual, and not general, in its scope.

The applicants conclude by submitting that, if secondary Community legislation does not comply with the Aarhus Convention approved by the Council, (3) the legislation in question must be interpreted in accordance with that convention, and that, if this is not possible, the Convention must be applied directly by the organs and institutions of the Community. Article 2(1)(g) of Regulation No 1367/2006 should for that reason, according to the applicants, not be applied.

(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) Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1).

(3) Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1).
EN Official Journal of the European Union C 312/35

Action brought on 14 October 2009 — CEA v Commission

(Case T-412/09)

2009/C 312/58

Language of the case: French

Parties

Applicant: Commissariat à l’énergie atomique (CEA) (Paris, France) (represented by: J. García-Gallardo Gil-Fournier, M. Arias Díaz and C. Humpe, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Acknowledge receipt of the application (application, authority to represent the applicant, together with copies and documents) and declare it admissible;

— examine the application lodged for and on behalf of CEA by its legal representatives;

— pursuant to Article 230 EC, annul the Commission’s decision — notified to CEA by a letter dated 29 July 2009 — refusing to treat the ‘indemnités de départ à la retraite’ (retirement allowances; ‘IDR’) paid by CEA as eligible indirect costs and to grant CEA a certificate on the accounting methodology;

— in the alternative, declare, pursuant to Article 238 EC, (i) that the IDR is an eligible cost in accordance with the contractual provisions of the 7th Research Framework Programme, and (ii) that the European Community has failed to comply with its contractual commitments towards CEA in relation to the 7th Research Framework Programme;

— order the Commission to pay the costs.

Pleas in law and main arguments

Principally, by its action on the basis of Article 230 EC, the Commissariat à l’énergie atomique (CEA) seeks the annulment of the Commission’s final decision, notified to CEA on 29 July 2009, refusing to treat the retirement allowances paid by CEA as eligible indirect costs and to grant CEA a certificate on the accounting methodology so that it can declare its indirect personnel costs in order to obtain reimbursement of costs incurred during the implementation of projects which are co-financed in connection with the 7th Research Framework Programme.

CEA takes the view that the Commission’s decision that the retirement allowances do not constitute eligible indirect costs is based on errors of law and manifest errors of assessment of the facts, and that the Commission has failed to have regard to the principles of good administration, legal certainty, proportionality and the protection of legitimate expectations.

In the alternative, CEA seeks a declaration on the basis of Article 238 EC that the Commission has failed to comply with its contractual commitments towards CEA by refusing to treat the retirement allowances paid by CEA as eligible costs and, accordingly, to reimburse them.
EN Official Journal of the European Union C 11/34

Action brought on 29 October 2009 — La City v OHIM — Bücheler and Ewert

(Case T-444/09)

2010/C 11/63

Language in which the application was lodged: French

Parties

Applicant: La City (La Courneuve, France) (represented by: S. Bénoliel-Claux, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Andreas Bücheler and Konstanze Ewert (Engelskirchen, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 5 August 2009 in Case R 233/2008-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Andreas Bücheler and Konstanze Ewert

Community trade mark concerned: the word mark ‘citydogs’ for goods in Classes 16, 18 and 25 (Application No 4 692 381)

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

Mark or sign cited in opposition: the French word mark ‘CITY’ for goods in Classes 9, 14, 18 and 25; the opposition is against registration in Classes 18 and 25

Decision of the Opposition Division: opposition upheld

Decision of the Board of Appeal: annulment of the contested decision and dismissal of the opposition

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) owing to the absence of likelihood of confusion of the marks at issue
EN Official Journal of the European Union C 11/32

Action brought on 19 October 2009 — Oyster Cosmetics v OHIM — Kadabell (OYSTER COSMETICS)

(Case T-437/09)

2010/C 11/60

Language in which the application was lodged: English

Parties

Applicant: Oyster Cosmetics SpA (Castiglione delle Stiviere, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal: Kadabell GmbH & Co. KG (Lenzkirch, 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 5 August 2009 in case R 1367/2008-1;

— Order the adverse parties to bear the costs of the present proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark “OYSTER COSMETICS”, for goods in class 3

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: Community trade mark registration of the figurative mark “KADUS OYSTRA AUTO STOP PROTECTION” for goods in class 3

Decision of the Opposition Division: Allowed the opposition partially

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 wrongly held that there was a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 24/57

Action brought on 7 November 2009 — Jiménez Sarmiento v OHIM — Robin and Others (Q)

(Case T-455/09)

2010/C 24/102

Language in which the application was lodged: Spanish

Parties

Applicant: Vicente J. Jiménez Sarmiento (Madrid, Spain) (represented by: P. Ma García-Cabrerizo del Santo, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Michel Robin (Lasnes, Belgium), Daniel Falzone (Waterloo, Belgium), Maxime Monseur (Tamines, Belgium)

Form of order sought

— Declare that, pursuant to Rule 70 implementing the Regulation on the Community trade mark, it is accepted that the period of four months for the submission of a written statement setting out the grounds of the administrative appeal which gives rise to this action expired on 16 May 2009, and consequently the submission made on 18 May 2009, that day being a Saturday, must be held to comply with the law.

— Alternatively, and in the event that the above claim is not accepted by the Court, declare that it is accepted that the applicant made an excusable error when calculating that period.

— If either of the above two claims is upheld, annul the decision of the Board of Appeal of OHIM in the case R0312/2009-4 dated 7 September 2009, declare that the written statement setting out the grounds for the administrative proceedings concerned was submitted in time, and order the Board of Appeal of OHIM to undertake an assessment of the substance of the case.

Pleas in law and main arguments

Applicant for a Community trade mark: Michel Robin, Daniel Falzone and Maxime Monseur.

Community trade mark concerned: Figurative mark consisting of the letter Q angled and with the lower part in bold (registration number 4 804 266) for goods in Classes 18, 25 and 28.

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

Mark or sign cited in opposition: Spanish figurative mark containing the word element ‘quadrata’ (No 1 770 312) for goods in Class 25.

Decision of the Opposition Division: Dismissal of the opposition as being inadmissible.

Decision of the Board of Appeal: Dismissal of the appeal as being inadmissible.

Pleas in law: Incorrect interpretation and application of Rule 70 of Regulation (EC) No 2868/95 of 13 December 1995 implementing the Regulation on the Community trade mark, departure by the defendant in the contested decision from its consistent practice, in circumstances of excusable error on the part of the applicant.