ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 100/62

Action brought on 18 February 2010 — Xeda International and Pace International v Commission

(Case T-71/10)

2010/C 100/92

Language of the case: English

Parties

Applicants: Xeda International (Saint Andiol, France) and Pace International LLC (Seattle, United States of America) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

— declare the application admissible and well-founded;

— annul the contested decision;

— order the Commission to pay all the costs and expenses of these proceedings,

— take such other further measures as justice may require.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment of Commission’s decision No 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council directive No 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance [notified under number C(2009) 9262] (OJ 2009 L 314, p. 79).

The applicants claim that, as a result of the contested decision, the first applicant will no longer be allowed to sell diphenylamine and diphenylamine-based products in the European Union and will lose its product registrations in the Member States effective as of 30 May 2010.

The applicants submit that the contested decision is unlawful because it is based on an underlying assessment of diphenylamine that is scientifically and legally flawed. According to the applicants, it infringes the Treaty on the Functioning of the European Union and secondary EU legislation.

In summary, the applicants contend that the contested decision bans the use of diphenylamine in plant protection products on the basis of three scientific concerns mentioned in recital 5 thereof, each of which was either adequately addressed by the applicants or was not a concern justifying non-inclusion.

Further, the applicants claim that the Commission infringed the applicants’ right of defence inasmuch as it prevented them from relying on the possibility to withdraw and re-submit a new dossier while benefiting from a longer phase-out period, as it was the case for other substances belonging to the same regulatory process.
EN Official Journal of the European Union C 100/61

Action brought on 18 February 2010 — IRO v Commission

(Case T-69/10)

2010/C 100/90

Language of the case: Italian

Parties

Applicant: Industrie Riunite Odolesi SpA (IRO) (Brescia, Italy) (represented by: A. Giardina, lawyer, P. Tomassi, lawyer)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2009) 7492 final of 30 September 2009 (‘the contested decision’);

— In the alternative, cancel or reduce the fine imposed by the contested decision;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put forward in Case T-55/10 SP v Commission.

In particular, the applicant alleges:

— Infringement of the law and misuse of powers, in so far as the Commission adopted the contested decision by which the applicant was penalised for participating in an alleged price-fixing cartel, without examining all the supporting documents because the annexes relating to the price tables were not included;

— Infringement of the procedural rules laid down in Regulation (EC) No 1/2003, (1) in so far as, following the annulment by the Court of First Instance of Decision C(2002) 5087 final of 17 December 2002, the Commission adopted the contested decision without carrying out any procedural steps, such as sending a statement of objections to the parties and/or hearing the parties, or involving the national authorities, and accordingly the entire procedure followed by the Commission was incomplete, inconsistent and unlawful and the rights of the defence of the undertakings penalised were infringed;

— Inadequate investigations and reasoning, in so far as the Commission did not correctly assess the information, which emerged during the investigation, concerning the size of the relevant market and the effects of the alleged cartel.

In the alternative, the applicant claims that the Court should cancel or reduce the fine imposed by the contested decision.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 179/47

Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC)

(Case T-198/10)

2010/C 179/83

Language in which the application was lodged: English

Parties

Applicant: Maximuscle Ltd (Hertfordshire, United Kingdom) (represented by: N. Phillips, Solicitor and G. Fernando, Barrister)

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

Other party to the proceedings before the Board of Appeal: Foreign Supplement Trademark Ltd (Oakville, Canada)

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 26 January 2010 in case R 1621/2008-1, and remit the matter alternatively altered;

— In the alternative, alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case R 1621/2008-1;

— Order the defendant to bear the costs incurred in these proceedings as well as those incurred before OHIM.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “GAKIC” for goods in classes 5, 30 and 32.

Proprietor of the Community trade mark cited in the invalidity proceedings: 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: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal and, as a result, rejected the request for a declaration of invalidity of the registered Community trade mark in question

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal: (i) repeated the error of the Cancellation Division and wrongly considered the case as if made under Article 7(1)(d), (ii) wrongly found significance in the fact that glycine-alpha-ketoisocaproic acid, of which GAKIC is an abbreviated form, is a patented compound in the United States, (iii) failed to consider material after the registration date, on the basis that it had no probative value, (iv) failed to consider evidence on the basis that it related to a website connected with the applicant, (v) had an inconsistent approach, given the finding that GAKIC was an abbreviated form of glycine-alpha-ketoisocaproic acid, (vi) mischaracterised evidence and failed to give proper weight to evidence showing that ‘GAKIC’ was the natural abbreviation of glycine [(G)]-alpha [(A)]-ketoisocaproic [(KIC)] acid, and (vii) wrongly found trade mark significance in the capitalisation of the words ‘GAKIC’.
EN Official Journal of the European Union C 100/57

Action brought on 9 February 2010 — Geemarc Telecom v OHIM — Audioline (AMPLIDECT)

(Case T-59/10)

2010/C 100/84

Language in which the application was lodged: English

Parties

Applicant: Geemarc Telecom International Ltd (Wanchai, Hong Kong) (represented by: G. Farrington, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Audioline GmbH (Neuss, 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 20 November 2009 in case R 913/2009-2; 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

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘AMPLIDECT’ for goods in classes 9 and 16

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

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

Decision of the Board of Appeal: Granted the appeal and, as a result, cancelled the registered Community trade mark subject of the application for a declaration of invalidity

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation 207/2009, as the Board of Appeal: (i) failed to take into account that the other party to the proceedings before the Board of Appeal had failed to adduce evidence of lack of distinctive character of the registered Community trade mark subject of the application for a declaration of invalidity; and (ii) failed to take into account that the registered Community trade mark subject of the application for a declaration of invalidity has acquired an enhanced distinctiveness through the level of use made of it; the Board of Appeal failed to restrict itself to an examination of the evidence and arguments provided by the parties within the time line set by the Board of Appeal.
EN Official Journal of the European Union C 113/65

Action brought on 17 February 2010 — Cindu Chemicals and others v ECHA

(Case T-95/10)

2010/C 113/97

Language of the case: English

Parties

Applicants: Cindu Chemicals BV (Uithoorn, Netherlands), Deza, a.s. (Valašské Meziříčí, Czech Republic), Koppers Denmark A/S (Nyborg, Denmark), Koppers UK Ltd (Scunthorpe, United Kingdom) (represented by: K. Van Maldegem, R. Cana, lawyers and P. Sellar, Solicitor)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

— declare the application admissible and well-founded;

— partially annul the contested act, as far as it relates to anthracene oil, anthracene low;

— order ECHA to pay the costs of these proceedings.

Pleas in law and main arguments

The applicants seek the partial annulment of the decision of the European Chemicals Agency (‘ECHA’) (ED/68/2009) to identify anthracene oil, anthracene low (CAS Number 90640-82-7) (‘anthracene oil (low)’) as a substance meeting the criteria set out in Article 57(d) and (e) of Regulation (EC) No 1907/2006 (1) (“REACH”), in accordance with Article 59 REACH.

On the basis of the contested decision, brought to the applicants’ attention by means of an ECHA’s press release, the anthracene oil (low) was included in the list of 14 chemical substances of the Candidate List of Substance of Very High Concern (‘SVHC’) for eventual inclusion in Annex XIV to the REACH. The reasons stated in the contested act for the identification of anthracene oil, anthracene low as a SVHC are that the substance is carcinogenic, mutagenic and very bioaccumulative (‘vPvB’) in accordance with criteria set out in Annex XIII to the REACH.

The applicants consider that the contested act infringes the applicable rules established for the identification of SVHCs under the REACH and put forward four pleas in law in support of their application which are identical to those raised in Case T-94/10, Rütgers Germany and Others v ECHA.

(1) Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1)
EN Official Journal of the European Union C 113/60

Action brought on 19 February 2010 — Ferriere Nord SpA v European Commission

(Case T-90/10)

2010/C 113/92

Language of the case: Italian

Parties

Applicant(s): Ferriere Nord SpA (Osoppo, Italy) (represented by: W. Viscardini, avvocato, G. Donà, avvocato)

Defendant(s): European Commission

Form of order sought

— As a main claim , annulment, pursuant to Article 263 of the Treaty on the functioning of the European Union, of the decision of the European Commission of 30 September 2009 C(2009) 7492 final — as amended and supplemented by the decision of the European Commission of 8 December 2009 C(2009) 9912 final, notified on 9 December 2009 — which imposed a fine of EUR 3 570 000 on the applicant following a procedure under Article 65 of the ECSC Treaty (COMP/37.956 — Concrete reinforcing bar, re-adoption).

— In the alternative , partial annulment of decision C(2009) 7492 final — as amended and supplemented by decision C(2009) 9912 final — and concomitant reduction of the fine.

Pleas in law and main arguments

The application is directed against the decision of 30 September 2009, as amended and supplemented by the decision of 8 December 2009, by which the Commission imposed a penalty for a breach of Article 65 CS on the basis of Regulation (EC) No 1/2003. (1)

The pleas in law and main arguments are similar to those relied on in other actions brought against the above decision.

In particular, the applicant raises the following pleas inter alia:

— the Commission had no authority to impose a penalty for a breach of the ECSC Treaty after that treaty ceased to be in force;

— there was no prior notification of a fresh ‘statement of objections’;

— there was no fresh hearing before the Hearing Officer;

— the final report of the Hearing Officer postdated the decision of 30 September 2009;

— the decision of 30 September 2009 was adopted without the annexes mentioned in it.

In the alternative, the applicant seeks the annulment in part of the above decisions, on various grounds, which include the following:

— erroneous legal assessment of the facts (as regards the duration of participation in the cartel, the objections put forward, the basic price, the supplement for larger sizes, the limitation of output and/or sales);

— the disproportionate amount of the fine in relation to the seriousness and duration of the infringement;

— failure to take account of mitigating circumstances;

— misapplication of the criteria laid down by the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, 4.1.2003, p. 1).
EN Official Journal of the European Union C 134/46

Action brought on 17 March 2010 — Lux Management v OHIM — Zeis Excelsa (KULTE)

(Case T-130/10)

2010/C 134/75

Language in which the application was lodged: English

Parties

Applicant: Lux Management Holding SA (Luxembourg, Luxembourg) (represented by: S. Mas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Zeis Excelsa SPA (Montegranaro, Italy)

Form of order sought

— Declare the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 without object;

— In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it failed to take into account the evidence presented by the applicant;

— In the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2010 in case R 712/2008-4 because it lacks motivation regarding the acquiescence of the registered Community trade mark subject of the application for revocation by the applicant; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revocation: The figurative mark ‘KULTE’ for goods in classes 14, 18 and 25

Proprietor of the Community trade mark: The applicant

Party requesting the revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the revocation: Italian trade mark registration of the figurative mark ‘CULT’, for all goods in class 25; international trade mark registration with effect in France and the Benelux of the figurative mark ‘CULT’, for goods in classes 14, 18 and 25

Decision of the Cancellation Division: Declared partially invalid the registration of the Community trade mark subject of the application for revocation

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 43 of Council Regulation No 207/2009 as the Board of Appeal failed to recognise that its decision is without object because of the fact that the parties have reached an agreement relating to the coexistence of the trade marks in question and the subsequent request of withdrawal; infringement of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as the Board of Appeal refused to admit new evidence presented by the applicant; infringement of Article 57(2) of Council Regulation No 207/2009 as the Board of Appeal erred in its assessment of the meaning of evidence transmitted and failed to provide reasons with regard to the proof of acquiescence by the other party to the proceedings before the Board of Appeal of the registered Community trade mark subject of the application for revocation.
EN Official Journal of the European Union C 113/61

Action brought on 19 February 2010 — Lucchini v Commission

(Case T-91/10)

2010/C 113/93

Language of the case: Italian

Parties

Applicant: Lucchini SpA (Milan, Italy) (represented by: M. Delfino, J.-P. Gunther and E. Bigi, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2009) 7492 final in Case COMP/37.956 — Reinforcing bars, re-adoption, as amended by Decision C(2009) 9912 final.

— In the alternative, annul Article 2 of the decision of 30 September 2009, in so far as the applicant is ordered to pay the sum of EUR 14.35 million jointly and severally with the company S.P. SpA.

— In the further alternative, reduce the amount of the fine imposed.

— In any event, order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the decision of 30 September 2009, as amended by the decision of 8 December 2009, by which the Commission imposed fines for infringement of Article 65 ECSC, on the basis of Regulation (EC) No 1/2003. (1)

The pleas in law and main arguments are similar to those relied on other actions brought against the decision in question.

In particular, the applicant puts forward the following pleas in support of its action:

— The incomplete nature of the decision and breach of essential procedural requirements, in so far as the decision was notified without its annexes and was adopted by the Commission in an incomplete form and was then re-notified still in an incomplete form, without the main text.

— The Commission lacks competence to allege infringement under Article 65 of the ECSC Treaty once the treaty has expired and, accordingly, incorrectly chose the substantive legal basis.

— Breach of the rights of the defence and infringement and incorrect application of the law, in so far as the Commission failed to re-open the administrative procedure and purported to exercise the power to examine the more favourable legislation applicable in the present case without giving the applicant the opportunity effectively to make known its views on the truth and relevance of the facts and circumstances alleged.

In the alternative, the applicant seeks annulment of the decision on the grounds that there is insufficient evidence and that the substantive law was incorrectly applied, in so far as the Commission imputes the infringement, for the entire period from 6 December 1989 and 27 June 2000, to Lucchini through the single undertaking Lucchini/Siderpotenza. The applicant emphasises Siderpotenza’s decision-making and management autonomy and the fact that the Commission was not in a position to provide convincing evidence to show that Lucchini was responsible, in terms of human and physical resources, for the management of Siderpotenza.

In the further alternative, the applicant observes that the Commission incorrectly applied the rules governing the calculation of fines, in particular the 1998 Guidelines.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 148/49

Action brought on 14 April 2010 — Grupo Osborne v OHIM — Industria Licorera Quezalteca (TORO XL)

(Case T-169/10)

2010/C 148/79

Language in which the application was lodged: Spanish

Parties

Applicant: Grupo Osborne SA (El Puerto de Santa María, Spain) (represented by: J. Iglesias Monravá, 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: Industria Licorera Quezalteca, SA

Form of order sought

— Annul the decision dated 22.01.2010 of the Board of Appeal of OHIM in Case R 223/2009-2 refusing registration of the Community trade mark No 4 769 279 TORO XL in Class 33;

— Permit, consequently, registration of the Community trade mark No 4 769 279 TORO XL in Class 33, and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Grupo Osborne.

Community trade mark concerned: Word mark ‘TORO XL’ (application for registration No 4 769 279) for goods and services in Classes 32, 33 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: Industria Licorera Quezalteca, SA.

Mark or sign cited in opposition: Community figurative mark (No 4 027 124) containing the expression ‘XL’ for goods in Class 33 (alcoholic drinks).

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Opposition upheld and application for registration refused.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.