ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 313/46

Action brought on 30 September 2008 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)

(Case T-430/08)

(2008/C 313/83)

Language in which the application was lodged: English

Parties

Applicant: Grain Millers, Inc. (Eden Prairie, United States) (represented by: L.-E. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grain Millers GmbH & Co. KG (Bremen, Germany)

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 23 July 2008 in case R 478/2007-2; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GRAIN MILLERS’ for goods in classes 29, 30 and 31 — application No 3 650 256

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 ‘business designation’‘GRAIN MILLERS’ and its figurative version

Decision of the Opposition Division: Partially rejected the opposition

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 40/94 as the Board of Appeal has overestimated the value of the evidence submitted by the other party to the proceedings before the Board of Appeal in order to substantiate prior rights over the earlier trade mark.
EN Official Journal of the European Union C 313/35

Action brought on 10 September 2008 — Aldi Einkauf v OHIM — Illinois Tools Works (TOP CRAFT)

(Case T-374/08)

(2008/C 313/63)

Language in which the application was lodged: German

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tools Works, Inc. (Glenview, United States)

Form of order sought

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 June 2008 in Case No R 952/2007-2;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Aldi Einkauf GmbH & Co. OHG

Community trade mark concerned: the figurative mark ‘TOP CRAFT’ for goods in Classes 1 and 3 (Application No 3 444 767)

Proprietor of the mark or sign cited in the opposition proceedings: Illinois Tools Works, Inc.

Mark or sign cited in opposition: The national figurative marks ‘krafft’ for goods in Classes 1 and 3

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Annulment of the Opposition Division's decision in so far as the opposition in respect of the goods ‘Chemicals used in agriculture, horticulture and forestry’ in Class 1 was upheld

Pleas in law: Infringement of Article 8(1)(b) and Article 43(2) and (3) of Council Regulation No 40/94 and of Rule 22(3) of Commission Regulation No 2868/95 because:

— the documents submitted by the opponent cannot prove use of the opposing marks,

— there are significant graphical differences between the marks at issue,

— the word element ‘TOP’ is not descriptive and of slight distinctive character, and
EN Official Journal of the European Union C 6/36

Action brought on 17 October 2008 — ISDIN v OHIM — Pfizer (ISDIN)

(Case T-467/08)

(2009/C 6/73)

Language in which the application was lodged: English

Parties

Applicant: Isdin, SA (Barcelona, Spain) (represented by: M. Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pfizer Ltd (Sandwich, United Kingdom)

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 4 July 2008 in case R 1031/2007-1; and

— Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ISDIN’ for goods in classes 3 and 5 — application No 3 288 339

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: Irish trade mark registration No 64 939 of the word mark ‘ISTIN’ for goods in class 5; United Kingdom trade mark registration No 824978 of the word mark ‘ISTIN’ for goods in class 5

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its findings that the trade marks concerned are similar, that the goods in question were hardly similar and that there is a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 6/38

Action brought on 28 October 2008 — Apollo Group v OHIM (THINKING AHEAD)

(Case T-473/08)

(2009/C 6/76)

Language of the case: English

Parties

Applicant(s): Apollo Group, Inc. (Phoenix, United States) (represented by A. Jaeger-Lenz and A. Link, 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 14 August 2008 in case R 728/2008-2, and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘THINKING AHEAD’ for goods and services in classes 9, 16 and 41

Decision of the examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade mark concerned is devoid of any distinctive character.
EN Official Journal of the European Union C 32/46

Action brought on 4 December 2008 — Commission v TMT Pragma

(Case T-527/08)

(2009/C 32/89)

Language of the case: Italian

Parties

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

Defendant: TMT Pragma (Rome, Italy)

Form of order sought

— Order the defendant to pay to the Commission the principal sum of EUR 30 700,23, together with default interest at the statutory legal rate in Spain from 29 August 2004 until payment in full of the amount due;

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

Pleas in law and main arguments

The subject-matter of the present action is a request that the defendant be ordered to repay a sum amounting to EUR 30 700,23 together with default interest. That sum represents a part of the contribution paid by the applicant in execution of contract No UR-96-SC.1105, entered into under the auspices of the Fourth Framework Programme for Research and Technological Development. The contract, which was concluded with other European research centres, provided for the development of a programme entitled ‘Integrated urban transport projects and market-orientated urban transport systems/on-demand urban transport systems — INTRAMUROS’.

In support of its claims, the applicant argues that it became apparent from the audit carried out in June 2000 that certain personnel expenses, the travel and accommodation expenses and the expenses in respect of consumables and information technology were not justified and therefore could not be charged to the project.

By debit note of 14 July 2004, the Commission notified the defendant that it sought reimbursement of the amount in question, together, if appropriate, with default interest in the event of non-payment.
EN Official Journal of the European Union C 19/35

Action brought on 26 November 2006 — Laboratorios Byly v OHIM — Ginis (BILLY'S Products)

(Case T-514/08)

(2009/C 19/67)

Language in which the application was lodged: Spanish

Parties

Applicant: Laboratorios Byly, SA (Barcelona, Spain) (represented by: L. Plaza Fernandez-Villa, 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: Vasileios Ginis (Athens, Greece)

Form of order sought

— The contested decision be annulled;

— the defendant be ordered to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Vasileios Ginis.

Community trade mark concerned: Figurative mark ‘BILLY'S products’ (application No 4.215.273) for goods in Class 3.

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

Mark or sign cited in opposition: Community word marks ‘BYLY’ (application No 156.216) for goods in Class 3, and ‘byly’ (application No 2.604.015) for goods in Classes 3 and 5, and services in Class 35.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 32/43

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-499/08)

(2009/C 32/83)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void and that the Commission's decision of 23 October 2008 refusing access to the same documents is non-existent;

— alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 23 October 2008 refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

— order the Commission to pay the costs incurred by the applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Pau airport. The said decision was followed by the express decision of 23 October 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

(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.
EN Official Journal of the European Union C 44/50

Action brought on 19 November 2008 — Mauerhofer v Commission

(Case T-515/08)

(2009/C 44/89)

Language of the case: English

Parties

Applicant: Volker Mauerhofer (Vienna, Austria) (represented by: J. Schartmüller, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— primarily, annul the contested measure as far as it concerns the applicant;

— additionally, or as an alternative to the claim for annulment, find that the defendant has incurred non contractual liability through the unlawful adoption of the contested measure;

— order the defendant to pay to the applicant, as a result of the contested measure, the sum of 5 500 euros for the non-contractual damages suffered and an annual interest rate of 4 % since 4 November 2008 until delivery of the judgment bringing the present proceedings to an end.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision of 9 September 2008 by which it adopted an administrative order reducing the number of working days allocated to the applicant for carrying out its tasks within an expert contract No MC/5043/025/001/2008 signed between the applicant and the Consultant for the participation in a ‘Value Chain Mapping Analysis’ project based on the Framework Contract ‘EuropeAid/123314/C/SER/multi’ carried out in Bosnia and Herzegovina, signed between the Consultant and the Commission. Furthermore, the applicant seeks the compensation for damages suffered as a result of the contested measure.

The applicant puts forward the following pleas in law in support of its claims:

First, the applicant claims that the contested measure was adopted by the Commission with breach of procedural requirement of a written proposal made by a Consultant prior to the Commission decision, as required by the General Conditions and Specific Guidelines applicable to the Framework Contract project ‘Value Chain Mapping Analysis’.

Second, the applicant submits that the contested measure was adopted with violation of its right to be heard by impartial authority.

Third, it argues that the contested measure was adopted with breach of its right to be dealt with by an authority free of a conflict of interest.

Further, the applicant contends that, when adopting the contested measure, the defendant failed to correctly and fairly calculate and analyse the number of working days deducted from the total number of the days allocated to the applicant for carrying out its tasks.

Finally, the applicant claims that the Commission misused its power when adopting the contested measure as it didn't take into account for the evaluation of a number of working days allocated to the applicant the mistakes committed by the Consultant.
EN Official Journal of the European Union C 55/42

Action brought on 17 December 2008 — TF1 v Commission

(Case T-573/08)

(2009/C 55/75)

Language of the case: French

Parties

Applicant: Télévision française 1 SA (TF1) (represented by: J.-P. Hordies and C. Smits, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of the Commission of 16 July 2008 in Case N 279/2008-France (Capital endowment for France Télévisions);

— order the Commission to initiate the formal investigation procedure under Article 88(2) EC in respect of State aid;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant applies for the annulment of Commission Decision C(2008) 3506 final of 16 July 2008, by which the Commission had held State aid in the form of a capital endowment of EUR 150 million in favour of France Télévisions to be compatible with the common market. The applicant requests in that context the initiation of the formal investigation procedure in accordance with Article 88(2) EC.

In support of its application, the applicant asserts, on the substance of the case, two pleas:

— based on the finding that there were serious difficulties in response to which the Commission should have been required to initiate the formal investigation procedure in accordance with Article 88(2) EC, those serious difficulties being demonstrated by (i) the fact that the decision was materially inaccurate, (ii) the inadequacy of the information at the Commission's disposal and (iii) the unusually short duration, as well as the circumstances, of the preliminary phase of investigation;
EN Official Journal of the European Union C 55/40

Action brought on 17 December 2008 — M6 v Commission

(Case T-568/08)

(2009/C 55/71)

Language of the case: French

Parties

Applicant: Métropole Télévision SA (M6) (Neuilly-sur-Seine, France) (represented by: O. Freget and N. Chahid-Nouraï, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the decision of the European Commission of 16 July 2008 in Case N 279/2008-France (Capital endowment for France Télévisions);

— require the Commission to initiate the formal investigation procedure under the first subparagraph of Article 88(2) EC in respect of State aid;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant applies for the annulment of Commission Decision C(2008) 3506 final of 16 July 2008, by which the Commission had held State aid in the form of a capital endowment of EUR 150 million in favour of France Télévisions to be compatible with the common market. The applicant requests in that context the initiation of the formal investigation procedure in accordance with Article 88(2) EC.

In support of its application, the applicant raises three pleas concerning the lawfulness of the contested decision alleging:

— a breach of the applicant's procedural rights, in so far as the Commission's assessment, and especially that relating to the direct causal link between the announcement of the President of the French Republic of 8 January 2008 concerning the abolition of commercial advertising on the channels of the France Télévisions group and the loss of income suffered by those channels, would create difficulties such as to justify the initiation of the formal investigation procedure in accordance with Article 88(2) EC so that the competitors of the France Télévisions group could set out their position;

— a failure of the Commission to provide adequate information concerning the cause of the loss of advertising revenue and intended use of the capital endowment granted to France Télévisions, in so far as the Commission did not verify with the required neutrality, impartiality and thoroughness the truth and reliability of the information which was communicated to it concerning the real causes of France Télévisions' advertising losses and the final use to which the sums paid by the French Republic to France Télévisions were to be put;
EN Official Journal of the European Union C 69/39

Appeal brought on 12 January 2009 by Georgi Kerelov against the judgment of the Civil Service Tribunal delivered on 29 November 2007 in Case F-19/07 Kerelov v Commission

(Case T-60/08 P)

(2009/C 69/91)

Language of the case: French

Parties

Appellant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by A. Kerelov, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— Annul the judgment of the European Union Civil Service Tribunal of 29 November 2007 in Case F-19/07 Kerelov v Commission;

— admit the pleadings submitted by the appellant at first instance;

— order the respondent to pay all the costs.

Pleas in law and main arguments

By the present appeal, the appellant seeks annulment of the judgment of the Civil Service Tribunal (CST) of 29 November 2007 delivered in Case F-19/07 Kerelov v Commission, dismissing the action by which the appellant sought, on the one hand, annulment of the decisions of the selection board of open competition EPSO/AD/43/06 not to include him on the reserve list of that competition and to exclude him therefrom, and, on the other, damages in compensation for the loss allegedly suffered.

In support of his appeal, the appellant relies on ten pleas in law, alleging:

— breach of the principles governing the administrative procedure with regard to proof, since the CST reversed the burden of proof;

— breach of the principle of an adversarial process, since the CST did not give the appellant sufficient time to take a position on the new documents added to the file;

— breach of the principle of the public nature of the proceedings, since the CST did not hold a fresh hearing following the lodging of new documents;

— breach of the duty of impartiality, since the CST did not take the steps necessary to examine the file;

— an error in law, since the CST held that the selection board, not the Director of the European Personnel Selection Office (EPSO), has the power to exclude a candidate;

— an error in law, since the CST considered that prohibition on contact between competition candidates and members of the selection board ends upon publication of the reserve list in the Official Journal of the European Union, and not when the selection board completes its work;

— breach of the relevant principles of administrative law by confirming the decision of the selection board of 2 February 2007 to exclude the appellant from the competition, since: — the original version of that decision was not added to the file; — that decision does not contain factual grounds sufficiently precise for its addressee to be aware of the exact facts on which it was based; and — the selection board did not invite the appellant to give an explanation for the facts on the basis of which his candidature was rejected, that is to say, the sending of two emails to the selection board;
EN Official Journal of the European Union C 55/28

Action brought on 8 December 2008 — Tuzzi fashion v OHIM — El Corte Inglés (Emidio Tucci)

(Case T-535/08)

(2009/C 55/52)

Language in which the application was lodged: English

Parties

Applicant: Tuzzi fashion GmbH (Fulda, Germany) (represented by: R. Kunze and G. Würtenberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2008 in case R 1561/2007-2; 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 figurative mark ‘Emidio Tucci’, for goods in class 25

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

Mark or sign cited: German trade mark registration No 1 078 843 of the word mark ‘TUZZI’ for goods in class 25; International trade mark registration No 496 835 with effect in Austria, France, the Benelux countries and Poland of the word mark ‘TUZZI’ for goods in class 25; Company name ‘TUZZI FASHION GMBH’ used in the course of trade in Germany for clothing.

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council Regulation 40/94 as the Board of Appeal wrongly assessed the likelihood of confusion between the trade marks concerned; Infringement of Article 73 of Council Regulation 40/94 as the Board of Appeal failed to address in a comprehensive manner the arguments put forward by the applicant and to objectively state the reasons on which its decision has been based; Infringement of Article 74 of Council Regulation 40/94 as the Board of Appeal failed to restrict itself in its examination to the facts, evidence and arguments put forward by the parties; Infringement of Article 79 of Council Regulation 40/94 since in its assessment of the defence of abuse of rights raised by the applicant the Board of Appeal failed to take into account general principles of procedural law recognized in the Member States.