ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 141/20

Action brought on 20 February 2013 — CMT v OHIM — Camomilla (Camomilla)

(Case T-99/13)

2013/C 141/36

Language in which the application was lodged: Italian

Parties

Applicant: CMT Compagnia manifatture tessili Srl (CMT Srl) (Naples, Italy) (represented by: G. Floridia and R. Floridia, lawyers)

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

Other party to the proceedings before the Board of Appeal: Camomilla SpA (Buccinasco, Italy)

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 29 November 2012 in Case R 1617/2011-1 by finding that the absolute ground for invalidity under Article 52(1)(b) of Regulation No 207/2009 — based on the bad faith of the proprietor of the Community trade mark at the time when the application was filed — and the relative ground for invalidity under Article 53(1)(a), in conjunction with Articles 8(1)(b) and 8(5) of the regulation, are made out;

— In the alternative, and only in the event that the Court should consider the documents produced at the time of the appeal before the Board of Appeal inadmissible and should consider those documents essential for the purposes of granting the appeal, annul the contested decision on the ground of failure to have regard to the right to be heard and infringement of the rights of the defence and refer the case back to the Cancellation Division for a decision on the substance;

— In any event, call upon OHIM to adopt the measures necessary to comply with the judgment of the General Court;

— Order OHIM to pay the costs of the present proceedings and the trade mark proprietor to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: figurative mark containing the word element ‘Camomilla’ for goods in Classes 3, 9, 14, 16, 21, 24 and 28 — Community trade mark No 3 158 196

Proprietor of the Community trade mark: Camomilla SpA

Applicant for the declaration of invalidity of the Community trade mark: the applicant

Grounds for the application for a declaration of invalidity: National figurative mark containing the word element ‘CAMOMILLA’ for goods in Class 25

Decision of the Cancellation Division: Application rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 52(1)(b) and Article 53(1)(a), in conjunction with Article 8(1)(b), of Regulation No 207/2009
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Annul, pursuant to Article 263 of the Treaty on the Functioning of the European Union, the decision of the European Commission communicated by letter of 3 January 2013, No H4/JN/Ref.t13.000011, informing the applicant that it would not examine the applicant’s request to be granted the status of undertaking operating under market economy conditions, filed pursuant to Article 2(7)(b) of Council Regulation (EC) No 1225/2009, in the antidumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components originating in the People’s Republic of China, opened on 6 September 2012 (AD 590);
1.

First plea in law, alleging that the decision infringes Article 107(3)(c) TFEU and the Community guidelines on State aid for rescuing and restructuring firms in difficulty. The applicant submits that the holding of the decision is incorrect as a matter of law on account of the fact that one or more of the (cumulative) conditions of the abovementioned guidelines is not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met. The arguments advanced to underscore this plea relate to the failure to comply with (i) the duty to assess one or more of the conditions of the aforementioned guidelines as at the date of the decision; (ii) the ‘one time, last time’ condition; (iii) the condition that restructuring aid may not serve to keep firms artificially alive; (iv) the conditions as to the assessment of previous unlawful aid; (v) the condition that the beneficiary of the aid must be a firm in difficulty; (vi) the condition that the beneficiary of the aid should not be a newly created firm; (vii) the condition that the restructuring plan must restore the long-term viability of the beneficiary; (viii) the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid; and (ix) the condition that the aid must be limited to the minimum and that a real contribution (free of aid) must be made by the business group.
EN Official Journal of the European Union C 79/26

Action brought on 17 January 2013 — AbbVie e.a. v EMA

(Case T-29/13)

2013/C 79/46

Language of the case: English

Parties

Applicants: AbbVie, Inc. (Wilmington, United States); and AbbVie Ltd (Maidenhead, United Kingdom) (represented by: P. Bogaert, G. Berrisch, lawyers, and B. Kelly, Solicitor)

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the Court should:

— Annul the Decision of the European Medicines Agency EMA/685471/2012, of 5 November 2012, granting access to documents from the marketing authorisation dossier of a medical product; and

— Order the European Medicines Agency to pay all costs in these proceedings, including the applicants’ costs.

Pleas in law and main arguments

The present action concerns a request for annulment under Article 263(4) TFEU of the Decision of the European Medicines Agency EMA/685471/2012, of 5 November 2012, granting access to documents from the marketing authorisation dossier of a medicinal product, pursuant to Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

In support of the action, the applicants rely on four pleas in law.

1. First, the Decision violates Article 4(2) of the Transparency Regulation and the Applicants’ fundamental right to the protection of confidential commercial information.

2. Second, the Decision violates the obligation to state reasons as regards the application of Article 4(2) of the Transparency Regulation.

3. Third, the Decision violates the principle of legitimate expectations.

4. Fourth, the Decision violates Directive No 2001/29/EC (1) on the harmonisation of certain aspects of copyright and related rights in the information society, of fundamental rights protecting property rights, including copyright and of the principles of proportionality and of good administration, insofar as access is granted by providing a copy of the documents.

(1) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
2.

Second plea in law, alleging that the Council has violated the Applicant’s rights of defence, right to a fair hearing and right to effective judicial protection. The Applicant has neither been informed nor notified of any possible evidence adduced against it to justify the measure adversely affecting it. The Council neither granted the Applicant access to its file nor provided it with the requested documents (including precise and personalised information justifying the disputed restrictive measures) nor disclosed to it the possible evidence adduced against it. The Applicant was denied to be heard by the Council as the Applicant expressly requested it. The abovementioned violation of the Applicant’s rights of defence — notably the failure to inform the Applicant of the evidence adduced against it — results in a violation of the Applicant’s right to effective judicial protection.
EN Official Journal of the European Union C 147/28

Action brought on 25 March 2013 — Omega v OHIM — Omega Engineering (Ω OMEGA)

(Case T-175/13)

2013/C 147/51

Language in which the application was lodged: Spanish

Parties

Applicant: Omega SA (Biel/Bienne, Switzerland) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

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

Other party to the proceedings before the Board of Appeal: Omega Engineering, Inc. (Stamford, United States)

Form of order sought

The applicant claims that the General 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 10 January 2013 in Joined Cases R 2055/2011-1 and R 2186/2011-1 and grant protection for the trade mark concerned in respect of all of the goods requested;

— order OHIM and Omega Engineering, Inc. to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Omega SA

Community trade mark concerned: International registration, designating the European Union, of the figurative mark with word element ‘Ω OMEGA’ for goods in Class 9 — international registration No 997 036 designating the European Union

Proprietor of the mark or sign cited in the opposition proceedings: Omega Engineering, Inc.

Mark or sign cited in opposition: National and Community word marks ‘OMEGA’ for goods and services in Classes 7, 9, 11, 16, 35, 38, 41 and 42

Decision of the Opposition Division: Opposition upheld in part and protection applied for refused in part

Decision of the Board of Appeal: Dismissal of the applicant’s appeal and more extensive partial refusal of the protection applied for

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 123/19

Action brought on 19 February 2013 — Cadbury Holdings/OHIM — Société des produits Nestlé (Shape of a four-finger chocolate bar)

(Case T-112/13)

2013/C 123/32

Language in which the application was lodged: English

Parties

Applicant: Cadbury Holdings Ltd (Uxbridge, United Kingdom) (represented by: T. Mitcheson, Barrister, P. Walsh and S. Dunstan, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Société des produits Nestlé SA (Vevey, Switzerland)

Form of order sought

The applicant claims that the Court should:

— Annul the Decision of the Second Board of Appeal in Case R 513/2011-2 dated 11 December 2012, except insofar as the Board of Appeal determined that the mark is devoid of inherent distinctive character under Article 7(1)(b); and

— Order OHIM to pay the costs of this application and order the intervener to pay the costs of the proceedings before the Cancellation Division and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a shape of a four-finger chocolate bar for goods in class 30 — Community trade mark registration No 2 632 529

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 171/31

Action brought on 5 April 2013 — Nanu-Nana Joachim Hoepp/OHIM — Stal-Florez Botero (la nana)

(Case T-196/13)

2013/C 171/59

Language in which the application was lodged: English

Parties

Applicant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (Bremen, Germany) (represented by: T. Boddien, lawyer)

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

Other party to the proceedings before the Board of Appeal: Lina M. Stal-Florez Botero (Maarssen, Netherlands)

Form of order sought

The applicant claims that the Court should:

— Annul the Decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 January 2013 in case R 300/2012-1, relating to cancellation proceedings No. 000005025 C (Community trademark No. 005205125) between Nanu-Nana Joachim Hoepp GmbH & Co. KG and Lina M. Stal-Florez Botero h.o.d.n. La Nana;

— Order the Defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘la nana’ for goods of classes 16, 20 and 24 — Community trade mark registration No 5 205 125

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The grounds of the request for a declaration of invalidity were those laid down in Article 8(1)(b), in conjunction with Article 53(1)(a) of Council Regulation No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity in its entirety based on Article 57(2) and (3) of Council Regulation No 207/2009

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b), Article 57(2) and (3) and Article 78 (1)(f) of Council Regulation No 207/2009.
—

annul, with immediate effect, on the basis of Article 263 TFEU, Commission Directive 2013/2/EU of 7 February 2013 amending Annex I to Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste in so far as it adds rolls, tubes and cylinders, with the exception of those for industrial use, to the list of examples of packaging;
—

The applicant states that: firstly, insofar as, they fail to state the grounds, the Contested Decisions and Regulations thus infringe the applicant’s rights of defence; secondly, the illegality of the Contested Decisions and Regulations affects these proceedings since on the one hand it hampers the possibility for the applicant to present a defence and, on the other hand, the Court’s ability to carry out the review of the lawfulness of the Contested Decisions and Regulations is impaired. It follows that the rights of the applicant to an effective judicial remedy are violated; and lastly, insofar as the applicant has been deprived of his rights of defence and since the Court’s ability to carry out the review of the lawfulness of the Contested Decisions and Regulations relating to fund freezing measures - which are by their very nature ‘particularly oppressive’ - is undermined, the applicant was imposed an unjustified restriction of his right to property.
EN Official Journal of the European Union C 189/27

Action brought on 6 May 2013 — Gemeente Nijmegen v Commission

(Case T-251/13)

2013/C 189/57

Language of the case: Dutch

Parties

Applicant: Gemeente Nijmegen (Nijmegen, Netherlands) (represented by: H. Janssen and S. van der Heul, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2013) 1152 final of 6 March 2013 in so far as it concerns the alleged aid awarded by the Municipality of Nijmegen to NEC;

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

Pleas in law and main arguments

The Municipality (Gemeente) of Nijmegen built the multi-purpose sports complex ‘De Eendracht’ next to the Goffert football stadium in Goffert Park in 2003. Both the Goffert Stadium and De Eendracht were leased to the Nijmegen professional football association, NEC. The lease agreement in respect of De Eendracht includes an agreed right for NEC to acquire De Eendracht.

In mid-2009 the Municipality drew up a plan to develop a large part of Goffert Park as a top-class sport and innovation park (Topsport- en Innovatiepark; TIP). It was expressly intended that, inter alia, the existing (but to be extended) Goffert Stadium and De Eendracht were to be incorporated into the TIP.

In 2008 and 2009 NEC informed the Municipality that it wished to exercise its right to buy De Eendracht from the Municipality. That proposal threatened the Municipality’s plans regarding the TIP. NEC appeared to be prepared to surrender its right to acquire De Eendracht in return for payment. On the basis of an independent valuation the purchase price was set at EUR 2.22 million. The Municipality paid that sum to NEC.

The Commission decided, by decision of 6 March 2013, to initiate the procedure under Article 108(2) TFEU, and the Municipality’s purchase of the right to acquire De Eendracht was deemed to constitute State aid for the purposes of Article 107(1) TFEU. The Municipality contests that decision.

In support of the action, the applicant relies on three pleas in law.

1. First plea, alleging breach of the principles of equality and of legal certainty owing to the fact that the Municipality’s use of the Commission’s Communication on sales of land (1) in the valuation of the right to acquire De Eendracht was disregarded without any reasons being given.

2. Second plea, alleging that the Commission exceeded its powers and erred in law, made a manifest error of assessment and/or infringed its obligation to state reasons by finding that the purchase of the right to acquire De Eendracht was State aid for the purposes of Article 107(1) TFEU, or at any rate that there were sufficient grounds for initiating the formal procedure under Article 108(2) TFEU.

3. Third plea, alleging unreasonable delay in initiating the formal procedure and breach of the principle of legal certainty and procedural requirements, and/or misapplication of the law.

(1) Commission Communication on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3).
1.

First plea in law, alleging that EFSA’s assessment that the Soybean is ‘substantially equivalent’ to its appropriate comparators is unlawful, is based on a scientific assessment which was not carried out in accordance with its own guidance, and/or is based on a manifest error of assessment.
EN Official Journal of the European Union C 207/37

Action brought on 23 April 2013 — Atmeh v OHIM — Fretier (MONTALE MTL MONTALE Dezign)

(Case T-239/13)

2013/C 207/61

Language in which the application was lodged: French

Parties

Applicant: Ammar Atmeh (Diera-Duba, United Arab Emirates) (represented by: A. Berthet, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sylvie Fretier (Paris, France)

Form of order sought

The applicant claims that the Court should:

— declare the present action to be admissible;

— Alter the decision of the Fourth Board of Appeal of OHIM of 14 February 2013 in Joined Cases R 1482/2011-4 and R 1571/2011-4 and suspend the annulment proceedings against the Community trade mark MONTALE MTL MONTALE Dezign No 003 874 807 submitted on 16 June 2004 by Mr Ammar Atmeh pending a definitive ruling on the application for a declaration of invalidity and for revocation of the trade marks of Ms Fretier pending before the Tribunal de Grande Instance de Paris;

— order OHIM 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: Figurative mark including the word elements ‘MONTALE MTL MONTALE Dezign’ for goods and services in Class 3 — Community trade mark No 3 874 807

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: Sylvie Fretier

Grounds for the application for a declaration of invalidity: National figurative mark including the word elements ‘PIERRE MONTALE MONTALE M’ and national figurative mark and international registration including the word elements ‘MTL MONTALE’ for goods in Class 3

Decision of the Cancellation Division: The application for invalidity is granted

Decision of the Board of Appeal: The action brought by the applicant is dismissed and the action brought by Sylvie Fretier is declared inadmissible

Pleas in law: Infringement of Rule 20 of Regulation No 2868/95 and of the principle of sound administration of justice
EN Official Journal of the European Union C 207/52

Action brought on 22 May 2013 — Iglotex/OHIM — Iglo Foods Group (IGLOTEX)

(Case T-282/13)

2013/C 207/84

Language in which the application was lodged: English

Parties

Applicant: Iglotex S.A. (Skórcz, Poland) (represented by: I. Helbig, P. Hansmersmann and S. Rengshausen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Iglo Foods Group Ltd (Feltham, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision;

— Annul the decision of the Opposition Division;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark containing the word element ‘IGLOTEX’ — Community trade mark application No 9 283 367 for goods in classes 29 and 30

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: The word mark ‘IGLO’ for goods in classes 29 and 30 — Community trade mark application No 5 740 238

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 215/14

Action brought on 16 May 2013 — Brainlab v OHIM (Curve)

(Case T-266/13)

2013/C 215/18

Language of the case: German

Parties

Applicant: Brainlab AG (Feldkirchen, Germany) (represented by J. Bauer, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 March 2013 in Case R 2073/2012-4 and the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 September 2012 in registration procedure No 008608473;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Curve’ for goods and services in Classes 9, 10, 35, 38, 41, 42, 44 and 45 — Community trade mark application No 8 608 473

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(f) of Regulation No 207/2009
—

Annul the corrigendum to notice of open competition EPSO/AD/177/10, corrigendum to notice of open competition EPSO/AD/178/10 and corrigendum to notice of open competition EPSO/AD/179/10, published in the Official Journal of the European Union C 82 A, of 21 March 2013.