ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 238/27

Action brought on 10 June 2011 — Otto v OHIM — Nalsani (TOTTO)

(Case T-300/11)

2011/C 238/48

Language in which the application was lodged: German

Parties

Applicant: Otto GmbH & Co. KG (Hamburg, Germany) (represented by: P. Schäuble and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nalsani, SA (Bogota, Colombia)

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 (Trade Marks and Designs) of 9 March 2011 in Case R 1291/2010-2;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Nalsani, SA

Community trade mark concerned: the figurative mark ‘TOTTO’ for goods in Classes 3, 9, 14, 18 and 25 — application No 6 212 451

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

Mark or sign cited in opposition: the national figurative mark ‘OTTO’ for goods in Classes 3, 9, 14, 18 and 25

Decision of the Opposition Division: the opposition was 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 a likelihood of confusion between the marks at issue. The Board of Appeal focused on the wrong factors in assessing the visual similarity of the signs.
1.

The first plea claims infringement of Article 4 of Annex VII to the Staff Regulations and distortion of the evidence produced before the Civil Service Tribunal. The appellant accuses the Civil Service Tribunal, first, of misinterpreting the documents numbered 22, 23, 24 and 25 on his file by deciding, at paragraph 31 of its judgment, that his presence in France between 1999 and 2000 could not be assimilated to a wish of the applicant to move the centre of his interests to his home country and, secondly, of making an incoherent assessment of the concept of habitual residence in paragraphs 29, 31 and 33 of the judgment under appeal.
1.

First plea in law, alleging that the Commission breached Articles 4(3) and 8(1) of Regulation (EC) No 1049/2001, as: — The Commission has not established that the conditions of Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001 are fulfilled; — The elements relied on by the Commission are factually inaccurate; and — There is an overriding public interest in the disclosure of the documents provided by EIM Business and Policy Research in the framework of the study on ‘Costs and benefits to merchants of accepting different payment methods’ (COMP/2009/D1/020)
EN Official Journal of the European Union C 238/26

Action brought on 9 June 2011 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)

(Case T-295/11)

2011/C 238/45

Language in which the application was lodged: English

Parties

Applicant: Duscholux Ibérica, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Duschprodukter i Skandinavien AB (Hisings Backa, Sweden)

Form of order sought

— Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

— Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2011 in case R 662/2010-1;

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

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 international figurative mark ‘duschy’, for goods in classes 11 and 20 — Community trade mark application No W927073

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

Mark or sign cited in opposition: Community trade mark registration No 2116820, of the figurative mark ‘DUSCHO Harmony’, for goods in classes 6, 11 and 19

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial; infringement of Articles 75 and 76 of Council Regulation No 207/2009, because the Board of Appeal disregarded facts and evidences that were submitted in due time by the applicant; and, infringement of Article 8(1)(b) of Council Regulation No 207/2009, because the Board of Appeal wrongly found that there was no risk of confusion between the conflicting trademarks.
EN Official Journal of the European Union C 252/39

Action brought on 28 June 2011 — Spain v European Commission

(Case T-339/11)

2011/C 252/88

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Commission Decision 2011/244/EU final of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it is the subject of this action, and

— order the defendant to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission excludes from financing certain costs of environmental management of packaging (for the years 2006, 2007 and 2008), in the sum of EUR 37 252 551,10.

The applicant argues in that regard that, by its Decision 2010/152/EU, the Commission excluded from EAGGF financing EUR 33 339 525,05 in connection with assistance for operational programmes, for it took the view that Community assistance to cover the costs entailed by the environmental management of packaging in the years from 2003 to 2006 had not been granted in accordance with the provisions of European Union law. That decision was the subject of an action for annulment brought by the Kingdom of Spain, at present pending as Case T-230/10.

The arguments put forward in this action are the same as those set forth in Case T-230/10.
—

that the contested Regulation contains manifest errors of appraisal in so far as the European Commission, firstly, relied on information that is not relevant, under the applicable legal framework, for the exposure of human beings and the environment in the EU, and, secondly, failed to identify risks resulting from acrylamide grouting, as per relevant applicable requirements, relying instead on information concerning the use of a different substance; as a result, the adoption of the said Regulation does not meet the conditions imposed by the relevant legal provisions;
EN Official Journal of the European Union C 269/52

Action brought on 1 July 2011 — Restoin v OHIM — (EQUIPMENT)

(Case T-356/11)

2011/C 269/116

Language of the case: French

Parties

Applicant: Christian Restoin (Paris, France) (represented by A. Alcaraz, lawyer)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 14 April 2011 in Case R 1430/2010-4;

— Order OHIM to pay the costs incurred by Mr Christian Restoin.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘EQUIPMENT’ for goods and services in Classes 3, 9, 14, 18, 25 and 35 — application for registration No 8 722 076.

Decision of the Examiner: Rejection of the application for registration.

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009, since the sign applied for is distinctive as regards the perception which the relevant public would have of it and as regards the goods and services for which registration is sought, and of Article 75 of that regulation, since the reasons of the Board of Appeal (i) cannot be all-encompassing, the goods covered not being sufficient homogenous, and (ii) are not coherent.
3.

By its third plea in law, the applicant claims that the principle of proportionality has been infringed in so far as it was found in the decision that: (i) the scheme constitutes unlawful aid in its entirety, including in relation to countries such as China and India and in other countries in which it has been shown or could be shown that there are explicit legal obstacles to cross-border business combinations, and that (ii) the scheme also constitutes State aid which is incompatible in its entirety in so far as it permits the deduction of financial goodwill in relation to acquisitions of majority shareholding in foreign companies outside of the EU.
2.

Second plea in law, alleging that the Civil Service Tribunal misconstrued the question put to it. It is apparent from the contested judgment that the Tribunal understood that the applicant asked it whether the difference in treatment of officials subject to the general implementing provisions in Articles 11 and 12 of Annex VIII to the Staff Regulations (‘the GIPs’) of 1969 and those subject to those of 2004 was unlawful, while the question asked of the Tribunal was whether ‘the new GIPs are discriminatory in that they treat different factual situations identically’. In that regard, the applicant submits that the Tribunal was incorrect to reject the plea in law alleging infringement of the principle of equal treatment.
—

Infringement of the second subparagraph of Article 194(2) TFEU, in conjunction with Article 192(2)(c) TFEU, by failing to take account of the particular characteristics of individual Member States concerning fuel and by calculating benchmarks on the basis of the reference efficiency of natural gas and taking that fuel as the reference fuel.
that the defendants acted in abuse of their discretion to decide upon the facts presented before them and hence exceeded the limits of their powers in that the reasons put forward by the contracting authority could have had only be applied to disqualify an offer during the tendering procedure, as not complying with the evaluation criteria, and not once the award had actually been made.
EN Official Journal of the European Union C 298/26

Action brought on 8 August 2011 — Giga-Byte Technology v OHIM — Haskins (Gigabyte)

(Case T-451/11)

2011/C 298/48

Language in which the application was lodged: English

Parties

Applicant: Giga-Byte Technology Co., Ltd (Taipei, Taiwan) (represented by: F. Schwerbrock, lawyer)

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

Other party to the proceedings before the Board of Appeal: Robert A. Haskins (Pennsylvania, USA)

Form of order sought

— Dismiss the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2011 in case R 2047/2010-2, as well as the decision of the Opposition Division

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Gigabyte’, for goods and services in classes 9, 35, 37 and 42 — Community trade mark application No 5550009

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: Community trade mark registration No 4954095 of the word mark ‘GIGABITER’, for services in classes 39, 40 and 42

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Section 9(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly concluded that the contested services in classes 37 and 42 are similar to the opponent’s services in class 42.
EN Official Journal of the European Union C 298/21

Action brought on 29 July 2011 — Biotronik SE v OHIM — Cardios Sistemas (CARDIO MANAGER)

(Case T-416/11)

2011/C 298/39

Language in which the application was lodged: German

Parties

Applicant: Biotronik SE & Co. KG (Berlin, Germany) (represented by: A. Reich and S. Pietzcker, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cardios Sistemas Comercial e Industrial Ltda (Sao Paulo, Brazil)

Form of order sought

The applicant claims that the General Court should:

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27.5.2011 in Case R 1156/2010-2;

— allow the opposition to the Community trade mark application No 5378071 in respect of all goods in Class 9 and in Class 10;

— alternatively, refer the opposition back to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the General Court;

— order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cardios Sistemas Comercial e Industrial Ltda.

Community trade mark concerned: Word mark ‘CARDIO MANAGER’ for goods in Classes 9 and 10 — Registration No 5 378 071.

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

Mark or sign cited in opposition: Word mark ‘Cardiomessenger’ for goods in Classes 9 and 10.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: First, infringement of Article 42(2) and (3) of Regulation No 207/2009 in conjunction with Rule 22(3) and (4) of Regulation No 2868/95, because proof of the place, time and also the extent and nature of the use of the mark ‘Cardiomessenger’ was provided and, secondly, infringement of Article 8(1)(b) and Article 41 of Regulation No 207/2009, because there is no likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 311/45

Action brought on 30 August 2011 — Longevity Health Products v OHIM — Weleda Trademark (MENOCHRON)

(Case T-473/11)

2011/C 311/84

Language of the case: German

Parties

Applicant: Longevity Health Products, Inc. (Nassau, Bahamas) (represented by: J. Korab, 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: Weleda Trademark AG (Arlesheim, Switzerland)

Form of order sought

— declare the action by the company Longevity Health Products Inc. admissible;

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 July 2011 in Case R 2345/2010-4 and reject the opposition by Weleda Trademark AG to the trade mark registration CTM 005050752; and

— order the Office for Harmonisation in the Internal Market to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Longevity Health Products, Inc.

Community trade mark concerned: Word mark ‘MENOCHRON’ for goods and services in Classes 3, 5 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Weleda Trademark AG

Mark or sign cited in opposition: Word mark ‘MENODORON’ for goods and services in Classes 3, 5 and 44.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8 of Regulation No 207/2009, (1) because there is no likelihood that the marks at issue would be confused.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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order the Council of the European Union to pay the costs, pursuant to Articles 87 and 91 of the Rules of Procedure of the General Court.
1.

First plea in law, alleging that the defendant wrongly attributed joint and several liability to the applicants and companies of the Elementis group and wrongly applied the concept of joint and several liability in holding the applicants liable for the share of the fine of the companies pertaining to Elementis group.
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Annul the decision of the Publications Office of the European Union to select the applicants’ bid submitted in response to the open call for tenders AO 10340 (lots 1, 3 and 4) ‘Computing Services — Software Development, Maintenance, Consultancy and Assistance for Different Types of IT Applications’ (1), as third contractor in the cascade mechanism for lots 1 and 4 and as second contractor in the cascade mechanism for lot 3, communicated to the applicants by letter dated 22 July 2011, and all the related decisions of the Office, including those to award the respective contract to the first and second cascade contractors; and
4.

Fourth plea in law, concerning the illegality of Regulation (EC) No 91/2009 on account of unlawfulness in the form of an infringement of Articles 2(4) and 6(2) and (4) of the WTO Anti-Dumping Agreement and of Articles 2(10), 6(8) and 20(2) and (4) of Regulation (EC) No 1225/2009, as well as on account of a manifest error of assessment, since the Commission determined the dumping margin on the basis of an inappropriate comparison between the normal value and the export price and failed to communicate, in sufficient time, to the producers of the People’s Republic of China the information necessary to ensure that they could exercise their rights of defence.
EN Official Journal of the European Union C 362/17

Action brought on 26 September 2011 — Peek & Cloppenburg v OHIM — Peek & Cloppenburg (Peek & Cloppenburg)

(Case T-506/11)

2011/C 362/25

Language in which the application was lodged: German

Parties

Applicant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: S. Abrar, lawyer)

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

Other party to the proceedings before the Board of Appeal: Peek & Cloppenburg (Hamburg, Germany)

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 28 February 2011 in Case R 53/2005-1;

— 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 ‘Peek & Cloppenburg’ for goods in Class 25

Proprietor of the mark or sign cited in the opposition proceedings: Peek & Cloppenburg

Mark or sign cited in opposition: another earlier sign, namely the company name ‘Peek & Cloppenburg’, which is valid in Germany

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009 as the use of the subsequent mark ‘Peek & Cloppenburg’ may not be prohibited and there is no right to prohibit use throughout Germany under Paragraph 12 of the Markengesetz (Law on Trade Marks), and infringement of the first part of the first sentence of Article 76(1) of Regulation No 207/2009 as the Board of Appeal should have waited for a decision of the German Federal Court of Justice and the res judicata of a judgment in the German proceedings to have the trade mark removed from the register.
EN Official Journal of the European Union C 13/15

Action brought on 30 September 2011 — Genebre v OHIM — General Electric (GE)

(Case T-520/11)

2012/C 13/32

Language in which the application was lodged: Spanish

Parties

Applicant: Genebre, SA (Hospitalet de Llobregat, Spain) (represented by: D. Pellisé Urquiza, lawyer)

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

Other party to the proceedings before the Board of Appeal: General Electric Company (Schenectady, United States of America)

Form of order sought

— Declare the application admissible;

— Annul the decision of the Fourth Board of Appeal of OHIM of 26 July 2011 in Case R 20/2009-4;

— Order that Community trade mark No 5 006 325 be granted in respect of all the goods and services for which registration was sought.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘GE’ for goods in Classes 6, 7, 9, 11 and 17.

Proprietor of the mark or sign cited in the opposition proceedings: General Electric Company.

Mark or sign cited in opposition: National and Community word marks ‘GE’ and Community figurative mark ‘GE’ for goods and services in Classes 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 25, 28, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal upheld.

Plea in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the marks at issue and General Electric Company has not produced sufficient evidence to show that its marks had been put to genuine use.
EN Official Journal of the European Union C 6/19

Action brought on 24 October 2011 — Lito Maieftiko Ginaikologiko kai Khirourgiko Kentro v Commission

(Case T-552/11)

2012/C 6/36

Language of the case: Greek

Parties

Applicant: Lito Maieftiko Ginaikologiko kai Khirourgiko Kentro A.E. (Athens, Greece) (represented by: E. Tzannini, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— uphold the present action;

— annul the contested debit note;

— take account of the applicant’s submissions if it holds that the amounts as accepted by the applicant in its memorandum of 17 June 2011 are to be refunded;

— annul the contested measure also in so far as it relates to the third instalment which has not been paid;

— set off any amounts that are to be refunded against the amounts never paid by way of the third instalment, which has remained outstanding for five years;

— hold that the present action constitutes an event interrupting the limitation period for the claim for payment of the third instalment;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks annulment of the Commission decision which is contained in debit note No 3241109207 of 9 September 2011 and relates to the applicant’s participation in the ‘WARD IN HAND’ research project No 510743.

In support of the action, the applicant relies on the following pleas in law:

— misuse of power by the European Commission, in so far as it proceeded to a legally fictional equation of the non-delivery of time sheets with the non-delivery of items to be delivered, as conduct in breach of contract;

— absence of a statement of reasons in the contested debit note and infringement of the general principle of law that an unfavourable measure must incorporate a statement of reasons in order for the legality of the reasoning to be reviewed, since the contested debit note does not state any reasons;

— failure to take account of the evidence;

— error of law and failure to state reasons, because the defendant took no account of the applicant’s actual submissions and rejected them in a wrongful manner and without stating reasons;