ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 313/43

Action brought on 27 September 2008 — INTER-NETT 2000 v OHIM

(Case T-423/08)

(2008/C 313/79)

Language in which the application was lodged: Hungarian

Parties

Applicant(s): INTER-NETT 2000 Kereskedelmi és Szolgáltató kft (Inter-Nett 2000 Kft) (Mór, Hungary) (represented by: E. Petruska, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Unión de Agricultores, S.A. (El Ejido, Spain)

Form of order sought

— Set aside the decision of the second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 July 2008 (Case R 71/2008-2) and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: INTER-NETT 2000

Community trade mark concerned: the figurative mark ‘HUNGARO’ for goods and services in classes 29, 31 and 35 (application No 004508917).

Proprietor of the mark or sign cited in the opposition proceedings: Unión de Agricultores, S.A.

Mark or sign cited in opposition: Community trade mark ‘UNIAGRO’ for goods in class 31.

Decision of the Opposition Division: Opposition partly upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 40/94, in that OHIM misinterpreted that provision, and breach of Article 12(a) and (b) of Regulation No 40/94, in that the decision of OHIM prevents the applicant from using the name of its proprietor and the designation of the geographical origin of the goods.
EN Official Journal of the European Union C 313/34

Action brought on 10 September 2008 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons)

(Case T-372/08)

(2008/C 313/62)

Language in which the application was lodged: German

Parties

Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by: H. Daniel and O.I. Haleen, 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: Fitne Gesundheits- und Wellness GmbH (Salzhemmendorf, Germany)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of 10 July 2008 in Case R 909/2007-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Notfall Bonbons’ for goods in classes 5 and 30 (Community trade mark No 3 563 251)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Fitne Gesundheits- und Wellness GmbH

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the trade mark concerned.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and granting of the application for a declaration of invalidity of the trade mark concerned.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94, since the trade mark ‘Notfall Bonbons’ is not descriptive of the protected goods, nor does it lack the requisite distinctive character.
EN Official Journal of the European Union C 313/48

Action brought on 6 October 2008 — CDC Hydrogene Peroxide v Commission

(Case T-437/08)

(2008/C 313/87)

Language of the case: German

Parties

Applicant: CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide) (represented by: R. Wirtz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— declare that decision SG.E3/MM/psi D(2008) 6658 of the Commission of 8 August 2008 is void pursuant to Article 231(1) EC;

— order the defendant to pay the applicant's necessary costs under Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicant, which brings actions for compensation of undertakings injured by the European hydrogen peroxide cartel, challenges the decision of the Commission of 8 August 2008, by which its application on the basis of Article 2(1) of Regulation (EC) No 1049/2001 (1) for full access to the statement of contents of the case-file in Case COMP/F/38.620 — Hydrogen peroxide and perborate was refused.

In support of its claims the applicant complains of the infringement of the first and third indent of Article 4(2) of Regulation (EC) No 1049/2001, as the exceptions contained in those provisions were misinterpreted or misapplied.

The applicant relies on four pleas in law in that regard.

First, the decision infringes the principle of strict interpretation and application of the exception. The Commission has not demonstrated any actual foreseeable and not merely hypothetical risk of detriment to the interests protected.

Secondly, the contested decision is inconsistent with the principles of law of effective compensation for infringements of EC competition law, as the interest of the injured parties in the details of the infringement is to be valued more highly than the interest of the undertakings in not disclosing to the public the details of the infringement alleged by the Commission and the scope of its cooperation with the Commission within the framework of the leniency notice.

Thirdly, the contested decision is not justified by the exception in the first indent of Article 4(2) of Regulation (EC) No 1049/2001 concerning the protection of commercial interests.

Fourthly, the contested decision is not justified by the exception in the third indent of Article 4(2) of Regulation (EC) No 1049/2001 concerning the protection of the purpose of inspections and investigations.

(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 L 145 of 31.5.2001, p. 43).
EN Official Journal of the European Union C 6/42

Action brought on 17 November 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CARBON CAPITAL MARKETS Emissions Compliance Solutions & Carbon Finance)

(Case T-490/08)

(2009/C 6/82)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding SA (Madrid, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, 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: Carbon Capital Markets Ltd (London, United Kingdom)

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of 3 September 2008 in Case R-16/2008-1, which would lead to the rejection of the contested trade mark in its entirety;

— uphold the applicant's claims;

— order OHIM to pay the costs of the present proceedings should they be contested and reject its claims.

Pleas in law and main arguments

Applicant for a Community trade mark: Carbon Capital Markets Limited.

Community trade mark concerned: Figurative mark ‘CARBON CAPITAL MARKETS (Emissions Compliance Solutions & Carbon Finance)’ (Application No 4.480.349), for services in Class 36.

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

Mark or sign cited in opposition: Community figurative mark ‘Capital Markets’ (Application No 3.409.281), for services in Classes 35, 36 and 42; Spanish figurative mark ‘Capital Markets’, for services in Class 36.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 6/41

Action brought on 14 November 2008 — Earle Beauty v OHIM (SUPERSKIN)

(Case T-486/08)

(2009/C 6/80)

Language of the case: English

Parties

Applicant(s): Liz Earle Beauty Co. Ltd (formerly Liz Earle Cosmetics Ltd.) (Ryde, United Kingdom) (represented by M. Cover, solicitor)

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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 September 2008 in case R 1656/2007-4 and declare that the Community trade mark concerned (application No 5 967 856) proceed to application and registration; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SUPERSKIN’ for goods and services in classes 3, 5 and 44 — application No 5 967 856

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade mark concerned is descriptive of the characteristics of the goods or services for which registration is sought.
EN Official Journal of the European Union C 32/38

Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

(2009/C 32/74)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, 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: Alfred Hartmann (Leer, Germany)

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 9 September 2008 (Case R 1858/2007-4); and

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Atlas Transport’ for transport operations (transport of goods) in Class 39 (Community trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regulation (EC) No 2868/95 (1), in so far as an incorrect standard was applied to the proof of use preserving the rights held and as evidence submitted was incorrectly assessed; breach of the procedural requirements of the right to a hearing in accordance with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the duty to give reasons under [Rule] 73(1) of Regulation (EC) No 2868/95; incorrect assessment.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 19/34

Action brought on 21 November 2008 — Psytech International v OHIM — Institute for Personality & Ability Testing (16PF)

(Case T-507/08)

(2009/C 19/64)

Language in which the application was lodged: English

Parties

Applicant: Psytech International Ltd (Pulloxhill, United Kingdom) (represented by: N. Phillips, Solicitor and N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal: Institute for Personality & Ability Testing, Inc. (Champaign, 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 23 July 2008 in case R 1012/2007-2 and remit the application for a declaration of invalidity to the OHIM to allow it to proceed, and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘16PF’ for goods and services in classes 9, 16, 35, 41 and 42 — Community trade mark registration No 1 892 652

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 7(1)(b), 7(1)(c), 7(1)(d) and 51(1)(b) of Council Regulation 40/94 as the Board of Appeal: (i) should have found on the evidence before it that the registered Community trade mark subject of the application for a declaration of invalidity was devoid of any distinctive character; (ii) failed to apply the correct legal test and failed to properly evaluate the evidence before it; and (iii) should have found on the evidence before it that the application for the registered Community trade mark subject of the application for a declaration of invalidity was made in bad faith.
EN Official Journal of the European Union C 44/50

Appeal brought on 25 November 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07 Smadja v Commission

(Case T-513/08 P)

(2009/C 44/88)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by K. Hermann and D. Martin, Agents)

Other party to the proceedings: Daniele Smadja (New Delhi, India)

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07;

— Dismiss the action brought by Mrs Smadja;

— Order that each of the parties bear their own costs before the Court of First Instance and the Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, the Commission seeks the setting aside of the judgment of the Civil Service Tribunal (CST) of 11 September 2000 in Case F-135/07, by which the CST annulled the Commission decision of 21 December 2006 grading the applicant at first instance in Grade A*15, step 1, in consequence of the judgment of the Court of First Instance of 29 September 2005 in Case T-218/02 Napoli Buzzanca v Commission.

In support of its appeal, the Commission relies one one ground of appeal, alleging error of law in the interpretation of the principle of proportionality.

In three parts, the Commission claims that:

— the principle of proportionality cannot be invoked when statutory provisions, such as Articles 3 and 4 of the Staff Regulations of Officials of the European Communities, prohibit the Commission from making appointments with retrospective effect;

— the principle of proportionality cannot lead to the denial of the authority of a judgment delivered but still possibly subject to appeal enjoyed by a judgment of the Court of First Instance;
EN Official Journal of the European Union C 32/37

Action brought on 31 October 2008 — Umbach v Commission

(Case T-474/08)

(2009/C 32/73)

Language of the case: German

Parties

Applicant: Dieter C. Umbach (represented by: M. Stephani, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the defendant's decision (reference: SG.E.3/MV/psi D(2008) 6991) of 2 September 2008.

Pleas in law and main arguments

The applicant has brought an action against the Commission decision by which that institution refused full and unrestricted access to documents connected with a TACIS programme and a TACIS contract to which the applicant was a party. The applicant claims that access to the documents in question is essential for his defence in the action filed by the Commission against him, following termination of the TACIS contract, for reimbursement of the monies paid in advance.

In support of his action the applicant claims, first, that general principles of Community law have been infringed, in particular the right to sound administration and the right to due process, because he, as a concerned party, must be given the possibility to obtain full and unfettered access to documents necessary for his defence and subsequent vindication of his own claims against the Commission.

The applicant also claims, secondly, that a right to full and unfettered access to the files arises from Regulation (EC) No 1049/2001 (1), inasmuch as the Commission erred, in particular, in the exercise of its discretionary powers under Articles 4 and 9 of that regulation.

(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).
—

manifest errors of assessment concerning: — application of Article 86(2) EC to the capital contribution of EUR 53,48 million by way of public service compensation, inasmuch as that sum doubly compensated the same public service obligations, giving rise to over-compensation and the rewarding of deficient management and the inability of SNCM to improve its productivity in an effective manner; — the negative sale price of EUR 158 million for SNCM, which cannot be free of elements of State aid; the Commission made an incorrect interpretation of the conduct of a private investor in a market economy and erred in holding that the risk of cumulation of liabilities against the State in the event of liquidation justified regarding the sale of SNCM at a negative price as the least costly solution; — the capital contribution by CGMF of EUR 8,75 million, the Commission not having taken into consideration all the economic, financial and legal factors, and not having proved that the contribution by CGMF did not constitute State aid; — the current account contribution by CGMF of EUR 38,5 million by way of social measures towards employees, the latter placing SNCM in a more favourable position than what would have resulted from the market; — the State aid of EUR 22,52 million, none of the grounds permitting the conclusion that that aid was compatible with Community guidelines having been verified in this case;
EN Official Journal of the European Union C 55/35

Action brought on 17 December 2008 — Slovenská pošta v Commission

(Case T-556/08)

(2009/C 55/64)

Language of the case: English

Parties

Applicant: Slovenská pošta a.s. (Banská Bystrica, Slovak Republic) (represented by: O. Brouwer, C. Schillemans, M. Knapen, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks annulment pursuant to Article 230 EC of Commission Decision C(2008) 5912 final of 7 October 2008 (Case COMP/39.562 — Slovakian Postal Law) by which the Commission found Slovakian postal legislation relating to hybrid mail services contrary to Article 86(1) read in conjunction with Article 82 EC to the extent that it reserves to the applicant the delivery of hybrid mail items.

The applicant puts forward four pleas in law in support of its claims.

First, it submits that the Commission violated the Community law principle of sound administration by failing to duly investigate all the facts and interests involved as, in the applicant's opinion, the contested decision is based on a number of assumptions. The applicant further states that the Commission violated the duty to state adequate reasons as laid down in Article 253 EC.

Second, the applicant claims that the Commission violated the applicant's right to be effectively heard.

Third, it contends that the Commission committed manifest errors in assessment and interpretation, in fact and in law, of the lawfulness of the granting of exclusive rights in the postal sector as a result of which it gave a wrong application to Articles 86 EC and 82 EC.

Fourth, the applicant submits that by adopting a fundamentally different and unprecedented approach with regard to the definition of the relevant market, the Commission has violated the principles of legal certainty and legitimate expectations.
EN Official Journal of the European Union C 55/29

Action brought on 9 December 2008 — Cixi Jiangnan Chemical Fiber and Others v Council

(Case T-537/08)

(2009/C 55/54)

Language of the case: English

Parties

Applicant(s): Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd, Zhejiang Anshun Pettechs Fibre Co. Ltd (China) (represented by: J.-F. Bellis, lawyer, G. Vallera, Barrister)

Defendant: Council of the European Union

Form of order sought

— annul Council Regulation (EC) No 893/2008 of 10 September 2008, maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People's Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (1), with retroactive effect as of 29 December 2006, that is, the date on which imports of polyester staple fibres originating in Taiwan and Malaysia were subjected to provisional anti-dumping duties, which the Commission decided not to collect in its Decision No 2007/430/EC of 19 June 2007 (2);

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

By means of this application the applicants, China-based companies, seek annulment of Council Regulation No 893/2008 maintaining anti-dumping measures with respect to, inter alia, the imports of polyester staple fibres (PSF) manufactured by the applicants and originating in China. The applicants submit that the same treatment as was applied in Commission Decision No 2007/430/EC to the PSF originating in Taiwan and Malaysia should be applied to the PSF originating in China. Therefore, the anti-dumping duty should be repealed as of the same date, i.e. 29 December 2006, with respect to the PSF originating in China.

The pleas in law and main arguments put forward by the applicants are identical to those relied on in case T-536/08, Huvis v Council.

(1) OJ L 247, p. 1.

(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating the anti-dumping proceeding concerning imports of synthetic staple fibres of polyesters (PSF) originating in Malaysia and Taiwan and releasing the amounts secured by way of the provisional duties imposed (OJ L 160, p. 30).