ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 51/35

Action brought on 11 December 2009 — Inovis v OHIM — Sonaecom (INOVIS)

(Case T-502/09)

2010/C 51/68

Language in which the application was lodged: English

Parties

Applicant: Inovis, Inc. (Alpharetta, United States) (represented by: R. Black and B. Ladas, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Sonaecom — Serviços de Communicações, S.A. (Maia, Portugal)

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 14 September 2009 in case R 1691/2008-1;

— Direct the Board of Appeal of the defendant to register the application for the Community trade mark; and

— Order the defendant to bear its own costs and those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “INOVIS”, for goods and services in classes 9, 35, 38 and 42

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: Portuguese trade mark registration of the word mark “NOVIS”, for goods and services in classes 9, 35, 37, 38, 41 and 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly: (i) ignored the clear differences between the respective goods and services covered by the trade marks concerned, including that it erroneously considered that the earlier mark covered classes 9 and 42, whereas registration for such classes was refused by the Portuguese Trade mark Office, and that, in any event, such registration was not substantiated during the proceedings; (ii) ignored the clear conceptual differences between the trade marks concerned; and (iii) held that there was a likelihood of confusion between the trade marks concerned.
Appeal brought on 12 April 2010 by V against the judgment of the Civil Service Tribunal delivered on 21 October 2009 in Case F-33/08 V v Commission

(Case T-510/09 P)

(2010/C 161/67)

Language of the case: French

Parties

Appellant: V (Brussels, Belgium) (represented by E. Boigelot, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Declare the appeal admissible and well-founded and, in consequence,

— set aside the judgment under appeal delivered on 21 October 2009 by the First Chamber of the European Union Civil Service Tribunal in Case F-33/08, notified to the appellant on 26 October 2009, dismissing as unfounded the appellant’s action for annulment of the Commission’s decision of 15 May 2007, informing her that she did not satisfy the physical fitness requirements necessary for the performance of her duties, and for an order that the Commission pay damages to the appellant for the losses she claims to have suffered;

— grant the form of order sought by the appellant before the European Union Civil Service Tribunal;

— order the respondent to pay the costs of the proceedings at first instance and of the appeal.

Pleas in law and main arguments

By the present appeal, the appellant requests the General Court to set aside the judgment of the Civil Service Tribunal (CST) of 21 October 2009, delivered in Case F-33/08 V v Commission, dismissing the action for annulment of the Commission’s decision not to engage the appellant on the ground that she does not satisfy the physical fitness requirements necessary for the performance of her duties, and a claim for damages.

In support of her appeal, the appellant puts forward three pleas in law alleging errors of law, distortion of the evidence in the documents in the case and erroneous and inadequate grounds of the judgment.

First, the appellant challenges the judgment under appeal in so far as the Tribunal found that it had not been established that the irregularity concerning Dr K’s intervention had influenced the procedural steps that culminated in the adoption of the decision at issue.

Second, the appellant takes the view that the CST misconstrued the duty to respect the confidentiality of medical information and the patient’s right as an individual to respect for such confidentiality, in so far as it considered itself to be prevented by the appellant’s reliance on that principle from reviewing the legality of the medical committee’s opinion as to her non-fitness for work.

Third, the appellant is of the view that the CST vitiated its reasoning by a failure to state reasons with regard to its appraisal of the arguments concerning the non-registration of the chairman of the medical committee on the list of the Belgian Ordre des médecins (Belgian Medical Council).
(c)

breach of the obligation to state reasons: the contested decision does not contain any grounds whatsoever, however slight, justifying the decision adopted. Inasmuch as it is contrary to and profoundly affects duly consolidated legal situations in a Member State, so causing the latter serious damage, such a decision ought, more than any other, to contain solid and persuasive reasoning, of which there is absolutely none in this case.
EN Official Journal of the European Union C 100/57

Action brought on 10 February 2010 — Jackson International v OHIM — Royal Shakespeare (ROYAL SHAKESPEARE)

(Case T-60/10)

2010/C 100/85

Language in which the application was lodged: English

Parties

Applicant: Jackson International Trading Company Kurt D. Brühl Gesellschaft m.b.H. & Co. KG (Graz, Austria) (represented by: S. Di Natale and H.G. Zeiner, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Royal Shakespeare Company (Stratford-upon-Avon, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2009 in case R 317/2009-1; and

— 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

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘ROYAL SHAKESPEARE’ for goods and services in classes 32, 33 and 42

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

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration of the word mark ‘RSC-ROYAL SHAKESPEARE COMPANY’, for services in class 41; United Kingdom trade mark registration of the figurative mark ‘RSC ROYAL SHAKESPEARE COMPANY’, for services in class 41; non-registered trade mark ‘ROYAL SHAKESPEARE COMPANY’, used in the course of trade in the United Kingdom for various services.

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

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and, as a result, declared invalid the registered Community trade mark subject of the application for a declaration of invalidity

Pleas in law: Infringement of Article 8(5) of Council Regulation 207/2009, as the Board of Appeal wrongly concluded that the conditions for the application of the said provision have been met.
EN Official Journal of the European Union C 80/37

Action brought on 26 January 2010 — Euro-Information v OHIM (EURO AUTOMATIC PAYMENT)

(Case T-28/10)

2010/C 80/62

Language in which the application was lodged: French

Parties

Applicant: Européenne de traitement de l'information (Euro-Information) (Strasbourg, France) (represented by A. Grolée, lawyer)

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

Form of order sought

— annul the decision of the Second Board of Appeal of 11 November 2009 in Case R 635/2009-2 inasmuch as it dismissed the trade mark application No 7 077 654 for the goods and services which are the subject of this action;

— grant Community trade mark application ‘EURO AUTOMATIC PAYMENT’ No 7 077 654 for all goods and services refused in Classes 9 and 36;

— order OHIM to pay the applicant’s costs incurred in the proceedings before OHIM and in the present action, pursuant to Article 87 of the Rules of Procedure.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘EURO AUTOMATIC PAYMENT’ for goods and services in Classes 9, 35, 36, 37, 38, 42 and 45 (Application for registration No 7 077 654).

Decision of the Examiner: Partial refusal of the registration.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 because, for all the goods and services refused for registration, the mark applied for is not descriptive but distinctive.
EN Official Journal of the European Union C 100/50

Action brought on 2 February 2010 — SIMS — Ecole de ski internationale v OHIM — SNMSF (esf école du ski français)

(Case T-41/10)

2010/C 100/76

Language in which the application was lodged: French

Parties

Applicant: Syndicat international des moniteurs de ski — Ecole de ski internationale (SIMS — Ecole de ski internationale) (Albertville, France) (represented by: L. Raison-Rebufat, 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: Syndicat national des moniteurs du ski français (SNMSF) (Meylan, France)

Form of order sought

— vary and annul in its entirety Decision R 235/2009-1 of 11 November 2009 of the First Board of Appeal of OHIM concerning the action for annulment brought by the applicant against Decision 2557 C of the Cancellation Division of OHIM to reject its application for a declaration of invalidity of the Community trade mark No 4 624 987 on the ground of an infringement of the provisions of Article 7(1) (h) and (g) of Regulation (EC) No 207/2009;

— declare that the trade mark No 4 624 987 is invalid on the dual ground of: — infringement of Article 6b(1)(a) and (c) of the Paris Convention to which Article 7(h) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark expressly refers; — infringement of Article 52 of the Regulation referring to Article 7(1)(g) of Council Regulation No 207/2009 of 26 February 2009 on the Community trade mark;

— declare the revocation of mark No 4 624 987 on the ground of the infringement of Article 51(1)(c) of Regulation No 207/2009 of the Council of 26 February 2009 on the Community trade mark.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark ‘esf école du ski français’ for goods and services in Classes 25, 28 and 41 (Community trade mark No 4 624 987).

Proprietor of the Community trade mark: Syndicat national des moniteurs du ski français.

Applicant for the declaration of invalidity: Syndicat international des moniteurs de ski — Ecole de ski internationale (SIMS — Ecole de ski internationale)

Decision of the Cancellation Division: Dismiss the application for a declaration of invalidity.

Decision of the Board of Appeal: Dismiss the appeal of the applicant

Pleas in law: infringement of Article 7(1)(h) and (g) and Article 51(1)(c) of Regulation No 207/2009.
EN Official Journal of the European Union C 113/71

Action brought on 4 March 2010 — Spain v Commission

(Case T-106/10)

2010/C 113/105

Language of the case: Spanish

Parties

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

Defendant: European Commission

Form of order sought

— annul Decision C(2009) 10136 final of 18 December 2009 applying financial corrections to the support from the Guidance Section of the EAGGF allocated to the Community initiative CCI 2000 ES.060.0.PC.003 (Spain — Leader + Aragon), and

— order the defendant to pay the costs.

Pleas in law and main arguments

Pursuant to the contested decision, the Commission applied a net financial correction of a flat rate of 2 % to the expenditure declared by the Spanish authorities until 4 June 2008, which involves a reduction of the support from the Guidance Section of the EAGGF of EUR 652 674,70 with respect to expenditure for the programme mentioned below which was initially granted in accordance with Commission Decision C(2001) 2067 of 31 July 2001.

The Kingdom of Spain submits that the decision should be annulled on the basis of two grounds:

The first ground is based on an infringement owing to the incorrect application of Article 39 of Regulation (EC) No 1260/1999 (1), in so far as the alleged irregularities justifying the financial correction imposed by the Commission do not in fact constitute an infringement of Article 4 of Regulation (EC) No 438/2001 (2), because the obligation imposed by that provision, according to which the records relating to on-the-spot verifications must state the work done, does not necessarily require those records to contain a list of the checks made, where they may be easily ascertained.

The second ground concerns the infringement of the principle of proportionality laid down in Article 39(3) of Regulation (EC) No 1260/1999, applied in relation to the guidelines defining the principles, criteria and indicative scales to be applied by the Commission staff in order to determine the financial corrections referred to in Article 39(3) of Regulation (EC) No 1260/1999 (3). First, by applying that correction of 2 % of the expenditure, even though the information provided by the Spanish authorities to the Commission showed that the risk to the Fund was substantially less than that percentage. Second, by extending the period concerned by the correction, so that not only the expenditure declared until the period covered by the Commission audit (17 December 2004) was included, but also the expenditure up until the date of the bilateral meeting (4 June 2008).

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

(2) Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21).

(3) Document C (2001) 476 of 2 March 2001.
EN Official Journal of the European Union C 113/49

Appeal brought on 10 February 2010 by Brigitte Zangerl-Posselt against the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-83/07 Zangerl-Posselt v Commission

(Case T-62/10 P)

2010/C 113/80

Language of the case: German

Parties

Appellant: Brigitte Zangerl-Posselt (Merzig, Germany) (represented by: S. Paulmann, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the contested judgment;

— give judgment itself and, as claimed by the appellant at first instance, annul the decision of the selection board of Competition EPSO/AST/27/06 of 25 July 2007 not to allow the appellant to be admitted to the practical and oral tests of that competition which was, in the meantime, confirmed by the decision of 13 December 2007 on her complaint;

— order the Commission to pay the costs incurred in connection with both proceedings.

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-83/07 Zangerl-Posselt v Commission, rejecting the appellant’s application.

The appellant bases her appeal on the ground that the Civil Service Tribunal erred in law when considering the conditions for admission to Open Competition EPSO/AST/27/06. In that regard, it is alleged inter alia that the Civil Service Tribunal, when deciding whether the appellant possessed a diploma within the meaning of the notice of competition in respect of the competition in question, essentially applied the French version of Article 5(3)(a)(ii) of the Staff Regulations of Officials of the European Union.

Further, according to the appellant, the arguments with which the Civil Service Tribunal sought to invalidate the appellant’s submissions are vitiated by a number of errors of law. In that regard, it is submitted inter alia that findings were made whose unlawfulness is apparent from the case-file, and also the clear sense of the evidence submitted was distorted.

The appellant further claims that the indirect discrimination on grounds of age, of which she complains and which was found to have existed, was held to be justified on grounds which were insufficient and false.
EN Official Journal of the European Union C 113/59

Action brought on 15 February 2010 — Inter IKEA Systems v OHIM — Meteor Controls (GLÄNSA)

(Case T-88/10)

2010/C 113/91

Language in which the application was lodged: English

Parties

Applicant: Inter IKEA Systems B.V. (Delft, The Netherlands) (represented by: J. Gulliksson, lawyer)

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

Other party to the proceedings before the Board of Appeal: Meteor Controls International Limited (Cookstown, Ireland)

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 1 December 2009 in case R 529/2009-2; and

— Order the defendant to pay the costs incurred both in these proceedings and in the proceedings before it.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “GLÄNSA”, for goods in class 11

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: Community trade mark registration of the word mark “GLANZ”, for goods in classes 6, 9 and 11

Decision of the Opposition Division: Rejected the trade mark applied for in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal failed to make a correct global assessment and comparison of the trade marks concerned, thereby wrongly finding that these were similar and, as a result, that there was a likelihood of confusion between them.
EN Official Journal of the European Union C 148/38

Action brought on 17 March 2010 — Coordination bruxelloise d'Institutions sociales et de santé (CBI) v European Commission

(Case T-137/10)

2010/C 148/64

Language of the case: French

Parties

Applicant: Coordination bruxelloise d’Institutions sociales et de santé (CBI) (Brussels, Belgium) (represented by: D. Waelbroeck, avocat, and D. Slater, solicitor)

Defendant: European Commission

Form of order sought

— annul the decision of the defendant of 28 October 2009 declaring compatible with the common market on the basis of Article 86(2) EC unlawful State aid granted by Belgium to certain public hospitals in the Région de Bruxelles-Capitale (Region of Brussels — Capital) and dismissing the applicant’s complaint;

— order the defendant to pay the costs.

Pleas in law and main arguments

By way of the present action, the applicant seeks the annulment of Commission Decision C(2009) 8120 final COR of 28 December 2009, declaring compatible with the common market all the funding granted by the Belgian authorities to the public hospitals belonging to the IRIS network in the Région Bruxelles-Capitale, by way of compensation for hospital and non-hospital services they provide in the form of services of general economic interest (SGEI) (State aid NN 54/2009 (ex-CP 244/2005)).

In support of its action, the applicant submits that the Commission’s decision contains manifest errors of assessment or, at least, provides very inadequate reasons.

The applicant submits in particular that the Commission’s claim that there is no need to examine the efficiency of the aid beneficiary, for example by comparing it to a ‘typical undertaking, well run and adequately provided for’, when examining the State aid in the light of Article 86(2) EC, allows Member State to cover all the costs of an undertaking charged with public service duties, irrespective of how exorbitant or disproportionate those may be, and thus must be rejected.

The applicant submits that, in order to avoid any distortion of competition on the market, compensation for carrying out public service duties should be limited to what is strictly necessary compared to the costs that an efficient operator would have incurred, which is not the case in the present case.
EN Official Journal of the European Union C 148/41

Action brought on 25 March 2010 — Hynix Semiconductor v Commission

(Case T-148/10)

2010/C 148/69

Language of the case: English

Parties

Applicant: Hynix Semiconductor, Inc. (Icheon-si, Korea) (represented by: A. Woodgate and O. Heinisch, Solicitors)

Defendant: European Commission

Form of order sought

— annul the Commission Decision in Case COMP/38.636 — Rambus, dated 9 December 2009;

— order the Commission to pay the costs;

— grant such other relief as the Court considers appropriate.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the Commission Decision adopted in the framework of Case COMP/38.636 — Rambus relating to a proceeding under Article 102 TFUE and Article 54 EEA, concerning the claiming of potentially abusive royalties for the use of certain patents for “Dynamic Random Access Memory” (DRAM). By the contested decision the Commission made binding upon Rambus certain commitments in accordance with Article 9 of the Council Regulation (EC) No 1/2003 (1) and decided that there were no longer grounds for action. The applicant is the competitor of Rambus and it lodged a complaint for the initiation of proceedings against it.

In support of its claims, the applicant puts forward three pleas in law.

First, the applicant argues that the Commission violated Article 9 of Regulation 1/2003 by choosing the procedure set out in this article where its concerns related to a serious violation of Article 102 TFUE to the extent that it intended to impose a fine. Further, it claims that there were no procedural savings in applying Article 9. In the applicant’s opinion, the commitments made biding by the Commission were manifestly inappropriate given the facts of the infringement in stake and it submits therefore that the Commission violated Article 9 of Regulation 1/2003, Article 102 TFUE and principle of sound (impartial) administration by accepting Rambus commitments. The applicant further submits that by applying incorrect proportionality test without applying the conditions set out in Article 9 itself and by misstating certain concerns and making erroneous conclusions as to whether the commitments deal with its concerns, the Commission erred in reaching the conclusion that there are no longer grounds for action. Furthermore, the applicant claims that the Commission failed to give reasons as to the appropriateness and adequacy of the commitments and therefore committed a serious error of assessment.

Second, the applicant argues that the Commission misused its powers under Article 9 of Regulation 1/2003.

Third, it claims that the Commission committed procedural errors when adopting the contested decision by not using its powers under Regulation 1/2003 and not further investigating the question of remedy adequately.

(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