ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 290/15

Action brought on 12 August 2011 — Sport-pari v Council

(Case T-439/11)

2011/C 290/22

Language of the case: English

Parties

Applicant: Sport-pari ZAO (Minsk, Belarus) (represented by: V. Vaitkute Pavan, A. Smaliukas and E. Matulionyte, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2011 L 161, p. 1), to the extent that it concerns the applicant;

— Annul Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2011 L 161, p. 25), to the extent that it concerns the applicant; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant puts forward as the main argument the manifest errors of assessment that the contested Council measures are tainted with. It alleges, in particular, that the Council erred in holding that the applicant is (a) controlled by Mr Vladimir Peftiev; (b) an operator of a national lottery; (c) linked to, or associated with the violations of electoral standards and human rights, or the crackdown on civil society in Belarus, or the import to Belarus of the equipment, which might be used for internal repression.

Furthermore, in support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging that the defendant breached the obligation to provide adequate reasoning for inclusion of the applicant in the lists of the persons to whom restrictive measures apply.

2. Second plea in law, alleging that the defendant infringed the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as: — at no time it provided for the communication of detailed reasons for the inclusion of the applicant in the lists of persons subject to the restrictive measures; and — it did not provide the applicant with the possibility to effectively exercise its’ rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing it to effectively request its removal from the lists of persons covered by the restrictive measures.

3. Third plea in law, alleging that the defendant infringed fundamental right to property provided for in Article 17 of the Charter of Fundamental Rights of the European Union and Article 1 of the Protocol No 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in an unjustified and disproportionate manner without compelling evidence.
EN Official Journal of the European Union C 298/20

Action brought on 27 July 2011 — Welte-Wenu v OHIM — Commission (Representation of a circle of 12 stars on a blue background)

(Case T-413/11)

2011/C 298/36

Language in which the application was lodged: German

Parties

Applicant: Welte-Wenu GmbH (Neu-Ulm, Germany) (represented by: T Kahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: European Commission

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 of 12.5.2011 — Case R 1590/2010;

— reject the appeal of the European Union against the decision of the Cancellation Division on the application for a declaration of invalidity of the Community trade mark EDS EUROPEAN DRIVESHAFT SERVICES (and thereby that application itself);

— order the European Union to pay the costs of the cancellation and appeal proceedings and the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing a circle of 12 stars on a blue background for goods in Classes 7 and 12 — Community trade mark No 2 180 800

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity of the Community trade mark: European Commission.

Grounds for the application for a declaration of invalidity: The registration of the Community trade mark was contrary to Article 7 of Regulation No 207/2009.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the Community trade mark at issue.

Decision of the Board of Appeal: Upholding of the appeal and cancellation of the Community trade mark at issue.

Pleas in law: Infringement of Article 7(1)(g)(h) and (i) and Articles 55 and 76 of Regulation No 207/2009, Article 6ter(1)(c) of the Paris Convention and Rule 37(b)(iv) of Regulation No 2868/95, since the registration of the Community trade mark was not contrary to the provisions of Article 7 of Regulation No 207/2009.
EN Official Journal of the European Union C 298/25

Action brought on 10 August 2011 — Galileo International Technology v OHIM — ESA (GALILEO)

(Case T-450/11)

2011/C 298/47

Language in which the application was lodged: English

Parties

Applicant: Galileo International Technology LLC (Bridgetown, Barbados) (represented by: S. Malynicz, Barrister, M. Blair and K. Gilbert, Solicitors)

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

Other party to the proceedings before the Board of Appeal: European Space Agency (ESA) (Paris, France)

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 April 2011 in case R 1423/2005-1; 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

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘GALILEO’ for services in class 42 — Community trade mark application No 2742237

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

Mark or sign cited in opposition: Community trade mark registration No 1701167, of the word mark ‘GALILEO’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2157501, of the word mark ‘GALILEO’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 516799, of the figurative mark ‘powered by GALILEO’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 330084, of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2159069, of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42

Decision of the Opposition Division: Rejected 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 failed to appreciate that there was a high degree of similarity between the goods and services covered by the earlier CTM and the services covered by the contested CTM. In particular the Board of Appeal failed to appreciate that part of the relevant goods and services could be complementary, as well as aimed at the same consumer and for the same purpose. In the circumstances of the Board’s conclusion that there was no likelihood of confusion was vitiated by error, bearing in mind the clear similarities between the marks and the fact that a lesser degree of similarity between these goods or services may be offset by a greater degree of similarity between the marks.
—

that the Commission failed, where it should have done so, to open the formal investigation procedure within the meaning of Article 108(2) TFEU;
EN Official Journal of the European Union C 319/27

Action brought on 8 September 2011 — Skyhawke Technologies v OHIM — British Sky Broadcasting et Sky IP (SKYCADDIE)

(Case T-484/11)

2011/C 319/55

Language in which the application was lodged: English

Parties

Applicant: Skyhawke Technologies, LLC (USA) (represented by: K. Gilbert and M. Blair, Solicitors)

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

Other parties to the proceedings before the Board of Appeal: British Sky Broadcasting Group plc (Isleworth, United Kingdom) and Sky IP International Ltd (Isleworth, United Kingdom)

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 28 June 2011 in case R 501/2010-4; and

— Order the defendant and the other parties to the procedure to bear their own costs and pay the costs of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SKYCADDIE’, for goods and services in classes 9, 25, 28 and 41 — Community trade mark application No 4264685

Proprietor of the mark or sign cited in the opposition proceedings: The other parties to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Community trade mark registration No 3203411 of the word mark ‘SKY’, for goods and services in classes 9, 16, 18, 25, 28, 35, 38, 41 and 42; United Kingdom trade mark registration No 2302176B of the word mark ‘SKY’, for goods and services in classes 9, 28, 36, 41, 42, 43 and 45; Community trade mark registration No 3166337 of the figurative mark in black and white ‘SKY’, for goods and services in classes 9, 16, 18, 25, 28, 35, 38, 41 and 42; United Kingdom trade mark registration No 2044507A of the word mark ‘SKY’, for goods in classes 18, 25 and 28; United Kingdom trade mark registration No 2197682 of the figurative mark in black and white ‘SKY’, for goods and services in classes 9, 16, 18, 25, 28, 35, 38, 41 and 42; United Kingdom well-known mark ‘SKY’, for goods and services in classes 9, 16, 28, 38 and 41; United Kingdom non-registered mark ‘SKY’, for goods and services in classes 9, 16, 28, 38 and 41;

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark application 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: (i) to appreciate that there were sufficient visual, aural and conceptual differences between the marks particularly with respect to its analysis of the conceptual meanings of the marks; and (ii) to properly take into consideration the level of attention of the average consumer of the category of goods concerned.
1.

First plea in law, alleging infringement of Article 107(1) TFEU, insofar as according to that provision what the Commission regards as a failure by the State to take the steps necessary to recover the amounts owed to it is neither new State aid within the meaning of Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (1) nor an alteration to existing aid. The applicant also claims that there is no increase in the State’s overall financial burden; and even if that were the case, it would also not be a basis on which to regard the facts at issue as new aid.
—

reduction in the level of the fine on the grounds that the Commission erred in its assessment of the gravity of the infringement and breached the principle of proportionality when determining the basic amount of the fine: (a) failure to take account of the fact that the infringement involved different practices with different durations and intensities; (b) errors of assessment in the finding that the infringement had an actual negative impact on competition and consumers in the relevant market.
EN Official Journal of the European Union C 355/24

Action brought on 4 October 2011 — Maxima Grupė v OHIM — Bodegas Maximo (MAXIMA PREMIUM)

(Case T-523/11)

2011/C 355/44

Language in which the application was lodged: English

Parties

Applicant: Maxima Grupė, UAB (Vilnius, Lithuania) (represented by: R. Žabolienė and E. Saukalas, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bodegas Maximo, SL (Oyón, Spain)

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 2 August 2011 in case R 1584/2010-4; and

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MAXIMA PREMIUM’, for goods in classes 3, 5, 16, 29, 30, 31, 32 AND 33 — Community trade mark application No 6981443

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Community trade mark registration No 6642284, of the word mark ‘MAXIMO’, for goods in class 33

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 as the Board of Appeal found that there was a likelihood of confusion without taking into account all the relevant aspects of the present case, including inherently low distinctive character of ‘MAXIMO/MAXIMA’, similarity of the signs, and the fact that the relevant public is highly attentive and well informed.
EN Official Journal of the European Union C 355/22

Action brought on 29 September 2011 — United States Polo Association v OHIM — Polo/Lauren (Representation of a device of two polo players)

(Case T-517/11)

2011/C 355/41

Language in which the application was lodged: English

Parties

Applicant: United States Polo Association (Kentucky, USA) (represented by: P. Goldenbaum, I. Rohr and T. Melchert, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Polo/Lauren Company, LP (New York, USA)

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 17 June 2011 in case R 1107/2010-2;

— Order the defendant to pay its own costs and those of the applicant; and

— Order the other party before the Board of Appeal to pay its own costs, in case it intervenes in the proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Community trade mark application of the figurative mark representing a device of two polo players, for goods in class 3 — Community trade mark registration No 5997473

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: French trade mark registration No 1441630 of the figurative mark representing a device of a polo player, for goods and services in classes 3, 9, 14, 16, 18, 24, 25 and 35; Spanish trade mark registration No 878316 of the figurative mark representing a device of a polo player, for goods in class 3; United Kingdom trade mark registration No 2172123 of the figurative mark representing a device of a polo player, for goods in class 3; German trade mark registration No 1070650 of the figurative mark representing a device of a polo player, for goods in class 3; Community trade mark registration No 4236527 of the three-dimensional trade mark representing a bottle device with a polo player, for goods in class 3

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rules 20(7) and 53(a) of Commission Regulation No 2868/95, and Infringement of Article 80(1) of Council Regulation No 207/2009, as the Board of Appeal notified its decision to the parties of the opposition on 19 July 2011 without taking into account their joint request for a suspension of the proceedings filed on 18 July 2011 and then dismissed the applicant’s request to revoke its decision and to grant the suspension request. Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that the registration of the CTM application was precluded by Article 8(1)(b). There is no likelihood of confusion between the opposing marks.
EN Official Journal of the European Union C 6/23

Action brought on 31 October 2011 — Unipol Banca v OHIM — Union Investment Privatfonds (unicard)

(Case T-574/11)

2012/C 6/42

Language in which the application was lodged: Italian

Parties

Applicant: Unipol Banca SpA (Bologna, Italy) (represented by: P. Costa and P. Creta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Union Investment Privatfonds GmbH (Frankfut am Main, Germany)

Form of order sought

— Annul the decision of 13 July 2011 of the Second Board of Appeal of OHIM in Case R 0597/2010-2 brought on 14 April 2010 by Union Investment Privatfonds GmbH and, accordingly

— Grant Community trade mark application No 005240080 filed on 18 July 2006 concerning the sign unicard also in respect of the services referred to in Class 36 of the Nice Agreement.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Unipol Banca SpA

Community trade mark concerned: Figurative mark ‘unicard’ (application for registration No 5.240.080) for services in Class 36

Proprietor of the mark or sign cited in the opposition proceedings: Union Investment Privatfonds GmbH

Mark or sign cited in opposition: German word marks ‘UNIFONDS’ (No 991.995), ‘UNIGLOBAL’ (No 991.996) and ‘UniGarant’ (No 30 138 306,5) for services in Class 36

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the application for registration of the mark in question

Pleas in law: Misapplication and misinterpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 362/18

Action brought on 6 October 2011 — Aloe Vera of America v OHIM — Diviril (FOREVER)

(Case T-528/11)

2011/C 362/27

Language in which the application was lodged: English

Parties

Applicant: Aloe Vera of America, Inc. (Dallas, United States) (represented by: R. Niebel and F. Kerl, lawyers)

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

Other party to the proceedings before the Board of Appeal: Diviril-Distribuidora de Viveres do Ribatejo, Lda (Alenquer, Portugal)

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 8 August 2011 in case R 742/2010-4; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘FOREVER’, for goods in classes 3, 5, 30, 31 and 32 — Community trade mark application No 5617089

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: Portuguese trade mark registration No 297697 of the figurative mark ‘4 EVER’, for goods in class 32

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 failed: (i) to correctly assess the proof of use provided by the other party to the proceedings before the Board of Appeal; (ii) to correctly identify the aural differences between the opposed trade marks; (iii) to correctly identify the conceptual differences between the trade marks in conflict; and (iv) to correctly identify the visual differences between the opposed trade marks.
Action brought on 4 November 2011 — JAS v Commission

(Case T-573/11)

(2012/C 25/107)

Language of the case: French

Parties

Applicant: JAS Jet Air Service France (JAS) (France) (represented by: T. Gallois, lawyer)

Defendant: European Commission

Form of order sought

— Annul the Commission’s decision of 5 August 2011 in Case REM 01/2008 in which the Commission: — decided that there was no special situation; and — refused the application for remission of import duties in the amount of EUR 1 001 778,20 submitted by JAS JET AIR SERVICE on 24 January 2008;

— order the Commission to pay the costs.

Pleas in law and main arguments

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

1. First plea in law: infringement of the obligation to state the reasons on which a decision is based, in so far as the Commission gave hypothetical reasons.

2. Second plea in law: infringement of the rights of the defence in that the Commission did not require the national administration to produce originals or copies of the customs declarations to which the application for remission related, although those documents would prove that a physical check had taken place.

3. Third plea in law: irregular examination of the case in that the burden of proof was reversed, the Commission having concluded, on the basis of the national authorities’ assertion that the customs declarations in question had disappeared, that there was no proof that the customs administration had physically checked the goods. The applicant submits that the Commission cannot make good that failure on the part of the national authorities, to the detriment of the applicant.

4. Fourth plea in law: infringement of Article 239 of the Community Customs Code (1) in so far as the Commission limited the scope of the definition of ‘special situation’.

5. Fifth plea in law: errors of law and manifest errors of assessment in so far as the Commission found that there was no ‘special situation’ for the purposes of Article 239 of the Customs Code, notwithstanding the fact that the applicant was faced with the same situation as another forwarding agent, a Dutch company, whose situation had been deemed by the Commission to constitute a ‘special situation’.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).
EN Official Journal of the European Union C 13/16

Action brought on 13 October 2011 — Deutsche Bank v OHIM (Leistung aus Leidenschaft)

(Case T-539/11)

2012/C 13/34

Language of the case: German

Parties

Applicant: Deutsche Bank AG (Frankfurt am Main, Germany) (represented by R. Lange, T. Götting and G. Hild, lawyers)

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 3 August 2011 in Case R 188/2011-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Leistung aus Leidenschaft’ for services in Classes 35, 36 and 38

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)(b) of Regulation No 207/2009 as the Community trade mark concerned has distinctive character