ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 64/53

Action brought on 24 December 2007 — RS Arbeitsschutz v OHIM — RS Components (RS)

(Case T-501/07)

(2008/C 64/84)

Language in which the application was lodged: English

Parties

Applicant: R. S. Arbeitsschutz Bedarfshandesgesellschaft mbH (Kaltenkirchen, Germany) (represented by: M. Ivens, lawyer)

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

Other party to the proceedings before the Board of Appeal: RS Components Ltd (Corby, United Kingdom)

Form of order sought

— Annul the decision of the Second Board of Appeal of 16 October 2007, notified to the applicant on 26 October 2007 in Case R 531/2007-2 and of the decision of the Opposition Division of 13 February 2007 ruling on Opposition No B 902 660.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community figurative trade mark composed of a device of a stylised glove or hand and the bold capital letters ‘RS’ for goods in class 9, 17 and 25 — application No 4 113 981

Proprietor of the mark or sign cited in the opposition proceedings: RS Components Ltd

Mark or sign cited: The Community figurative trade mark ‘RS’ for goods in class 9, 17 and 25

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94.
EN Official Journal of the European Union C 64/60

Appeal brought on 14 January 2008 by Marta Andreasen against the judgment of the Civil Service Tribunal delivered on 8 November 2007 in Case F-40/05, Andreasen v Commission

(Case T-17/08 P)

(2008/C 64/97)

Language of the case: French

Parties

Appellant: Marta Andreasen (Barcelona, Spain) (represented by B. Marthoz, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— set aside the judgment of the Civil Service Tribunal of 8 November 2007 in Case F-40/05, rule on the dispute and grant the form of order sought by the appellant at first instance, including the claim for damages;

— order the defendant in the appeal to pay the costs;

— order the European Commission to pay all the costs and expenses;

— in the alternative, set aside the judgment of the Civil Service Tribunal of 8 November 2007 in Case F-40/05, refer the case back to the Civil Service Tribunal and reserve the costs.

Pleas in law and main arguments

In her appeal, the appellant claims that the judgment of the Civil Service Tribunal dismissing the action, first, for the annulment of the decision of 30 October 2004 by which the Commission removed her from her post as a disciplinary measure without any reduction of her pension rights and, second, the claim for damages should be set aside.

In support of her appeal, the appellant puts forward five pleas.

First of all, she claims that the Civil Service Tribunal infringed Article 10 of Annex IX to the Staff Regulations, in that it did not carry out a review of the legality and of the proportionality of the decision contested at first instance in relation to the application of that provision in the light of the circumstances of the present case and the appellant's particular situation owing to the nature of the tasks which she performed.

The second plea is based on the alleged infringement of the principles of the legality of Community acts, of the temporal application of Community acts and of legal certainty in that the Civil Service Tribunal did not state grounds for its judgment on the issues relating to the application, in the present case, of the rules contained in the old and new Staff Regulations.

Further, the appellant alleges that the Civil Service Tribunal misinterpreted the facts submitted for its assessment.

She also pleads an error of assessment and an infringement by the Civil Service Tribunal of Articles 11, 12, 17 and 21 of the Staff Regulations in that it did not provide adequate grounds in law for its judgment to the extent that it approved the application of those provisions as effected by the decision contested at first instance.

Lastly, the appellant claims that the Civil Service Tribunal also infringed the principles recognised in Articles 6(1) and 13 of the European Convention on Human Rights and Articles 41 and 47 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 64/56

Action brought on 4 January 2008 — Nestlé v OHIM — Master Beverage Industries (Golden Eagle Deluxe)

(Case T-7/08)

(2008/C 64/90)

Language in which the application was lodged: English

Parties

Applicant: Société des Produits Nestlé SA (Vevey, Switzerland) (represented by: A. von Mühlendahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Master Beverage Industries Pte Ltd (Singapore, Singapore)

Form of order sought

— Annul the decision of the defendant's Second Board of Appeal of 1 October 2007, Case R 1312/2006-2 (CTM 3 157 534);

— decide that the contested CTM application No 3 157 534 RED MUG device with ‘Golden Eagle Deluxe’ must be rejected;

— order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal;

— order Master Beverage, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, in case it should become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: Master Beverage Industries Pte Ltd

Community trade mark concerned: The figurative mark ‘Golden Eagle Deluxe’ for goods in class 30 — application No 3 157 534

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

Mark or sign cited: The Community, international and national figurative marks and word marks ‘Red Cup’, ‘Gold Blend’ and representations of a cup for, inter alia, coffee

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and 8(5) of Council Regulation No 40/94, as the conflicting trade marks have a high degree of visual similarity because of an identical arrangement of nine elements present in both the trade mark applied for and in most of the earlier marks, which are inherently distinctive.
EN Official Journal of the European Union C 92/38

Appeal brought on 5 February 2008 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-110/06, Carpi Badía v Commission

(Case T-52/08 P)

(2008/C 92/76)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by G. Berscheid and K. Herrmann, acting as Agents)

Other party to the proceedings: José María Carpi Badía (Luxembourg, Grand Duchy of Luxembourg)

Form of order sought by the appellant

— Annul the judgment of the Civil Service Tribunal of 22 November 2007 in Case F-110/06 Carpi Badía v Commission and refer the case back to the Civil Service Tribunal;

— order the respondent to pay the costs.

Pleas in law and main arguments

By the present appeal, the Commission seeks annulment of the judgment of 22 November 2007 in Case F-110/06 Carpi Badía v Commission, by which the Civil Service Tribunal (CST) annulled its decision allocating to the applicant at first instance a number of priority points insufficient for him to be promoted in promotion year 2005 and its decision finalising the list of officials promoted during that promotion year inasmuch as it does not include the applicant's name.

In support of its appeal, the Commission raises three pleas in law seeking annulment identical to those raised in Case T-51/08 P Commission v Dittert.
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second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession; and
EN Official Journal of the European Union C 92/34

Action brought on 22 January 2008 — Evropaïki Dynamiki v Commission

(Case T-39/08)

(2008/C 92/69)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Commission to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

— order the Commission to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 441 564,50;

— order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected;

— order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application.

Pleas in law and main arguments

The applicant submitted a bid in response to the defendant's call for an open tender concerning hosting, management, enhancement, promotion and maintenance of the Commission's Internet portal on eLearning (elearningeuropa.info) (OJ 2007/S 87-105977). The applicant contests the defendant's decision of 12 November 2007 rejecting the applicant's bid and informing the applicant that the contract would be awarded to another tenderer. The applicant further requests compensation for the alleged damages caused by the tender procedure.

In support of its application, the applicant submits that the defendant committed manifest errors of assessment and failed to state reasons in accordance with Article 253 EC. Furthermore, the applicant alleges that the defendant confused evaluation criteria with award criteria when evaluating the bids and used evaluation criteria that were not disclosed to the tenderers before the deadline for submitting the offers. Finally, the applicant contends that the defendant violated the principle of non-discrimination.
EN Official Journal of the European Union C 92/42

Action brought on 12 February 2008 — Poland v Commission

(Case T-69/08)

(2008/C 92/83)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: M. Dowgielewicz, acting as Agent)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision 2008/62/EC of 12 October 2007 relating to Articles 111 and 172 of the Polish Draft Act on Genetically Modified Organisms, notified by the Republic of Poland pursuant to Article 95(5) of the EC Treaty as derogations from the provisions of Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms (decision notified under document number C(2007) 4697) (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision 2008/62/EC of 12 October 2007 which rejects proposed national provisions laying down a derogation from Directive 2001/18/EC (2) that were notified by the Republic of Poland pursuant to Article 95(5) EC. The applicant states that it was notified by the Commission of the contested decision on 4 December 2007, that is to say after expiry of the six-month period laid down in Article 95(6) EC, meaning that, in accordance with that article, those provisions should be considered to have been approved upon expiry of the six-month period.

The applicant submits that the fact that the decision was adopted on 12 October 2007 is immaterial as regards observance of that time-limit; it is the date of notification of the contested decision, and that alone, which is decisive in this regard.

The applicant therefore puts forward the following pleas in support of its application:

— breach of Article 95(6) EC, in conjunction with Article 254(3) EC;

— breach of an essential procedural requirement consisting in the obligation to notify a decision to those to whom it is addressed within the period laid down by law and thus to enable them to become aware of the decision's content;

— breach of the principle of legal certainty.

(1) OJ 2008 L 16, p. 17.

(2) Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).
EN Official Journal of the European Union C 107/30

Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge)

(Case T-67/08)

(2008/C 107/50)

Language in which the application was lodged: English

Parties

Applicant: Hedgefund Intelligence Ltd (London, United Kingdom) (represented by: J. Reed, Barrister, and G. Crofton Martin, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Hedge Invest SGR P.A. (Milan, Italy)

Form of order sought

— The decision of the Second Board of Appeal dated 28 November 2007 in Case R 148/2007-2 dismissing the appeal shall be annulled;

— the Opponent's opposition be dismissed;

— the Office and the other party shall bear their own costs, and the other party shall pay those of the applicant before the Opposition Division, the Board of Appeal and this Court.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘InvestHedge’ for goods and services in classes 9, 16, 36 and 41 — application No 3 081 081

Proprietor of the mark or sign cited in the opposition proceedings: Hedge Invest SGR P.A.

Mark or sign cited: The Community figurative mark ‘HEDGE INVEST’ for services in class 36

Decision of the Opposition Division: Opposition upheld for all the contested services in classes 36 and 41; the trade mark application allowed to proceed for the non-contested goods in classes 9 and 16

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant submits that when determining the visual similarity of the respective marks in the eyes of non-English speaking consumers, the Board of Appeal was wrong to take account of the ‘commercial impression’ and to consider that the commercial impression of the conflicting trade marks was the same.

When assessing the aural similarity of the conflicting trade marks to the ears of non-English speaking consumers, the Board of Appeal improperly put the burden of proof on the applicant.

Finally, the Board of Appeal failed to apply, at the relevant stage, the uncontested finding that there was only a very limited and/or remote degree of similarity between the services in classes 36 and 41.
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declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/62/EC (1) of 30 September 2005 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards Community standards and specifications relating to a quality system for blood establishments, and in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;
EN Official Journal of the European Union C 107/35

Action brought on 12 February 2008 — Guardian Industries and Guardian Europe v Commission

(Case T-82/08)

(2008/C 107/59)

Language of the case: English

Parties

Applicants: Guardian Industries Corp. (Auburn Hills, United States) and Guardian Europe Sàrl (Dudelange, Luxembourg) (represented by: S. Völcker, F. Louis, A. Vallery. C. Eggers and H.-G. Kamann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Partially annul Article 1 of the contested decision in accordance with the pleas outlined in Sections A.1 and A.2;

— reduce the amount of the fine imposed on the applicants; and

— order the Commission to bear the costs.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision No C(2007) 5791 final (Case COMP/39.165 — Flat glass), of 28 November 2007, as notified to them on 3 December 2007, by which the Commission found that the applicants, among other undertakings, had infringed Article 81 EC and Article 53 EEA by participating, from 20 April 2004 to 22 February 2005 in a complex set of agreements and/or concerted practices coveting the whole of the EEA.

According to the applicants, the contested decision should be annulled and the fine imposed on them adjusted accordingly, since it is vitiated by the following grave errors:

(i) the Commission's failure to adduce precise and consistent evidence that the applicants participated in the cartel operated by three incumbent glass producers before the 11 February 2005 meeting;

(ii) the Commission's unsubstantiated assertion that, at that meeting, the applicants entered into agreements that extended across the EEA.

In addition, the applicants ask the Court to exercise its unlimited jurisdiction to further reduce their fine. On this basis they claim, first, that without reasoning, in a departure from its own consistent position and in a clear violation of the Court's established case-law, the Commission allegedly excluded one billion euros of captive sales from the calculation of the other addressees' fines, thereby vastly overstating the applicants' market position and, second, that the Commission ignored the applicants' substantially limited passive role in the infringement compared to the other participants' long-lasting efforts to cartelise flat glass sales in Europe, and their attempts to enlist the applicants in those efforts.
EN Official Journal of the European Union C 142/34

Action brought on 11 April 2008 — Loufrani v OHIM (half-smiley)

(Case T-139/08)

(2008/C 142/62)

Language of the case: English

Parties

Applicant: Franklin Loufrani (London, United Kingdom) (represented by: A. Deutsch, lawyer)

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

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of 7 February 2008 in case R 0958/2007-4); and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘half-smiley’ for goods in classes 14, 18 and 25 — application No 893 580

Decision of the examiner: Refusal of the application for all goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the mark acquired the minimum degree of distinctiveness required to be registered.
EN Official Journal of the European Union C 128/34

Appeal brought on 18 January 2008 by C. Michail against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-34/06 Michail v Commission

(Case T-50/08)

(2008/C 128/73)

Language of the case: Greek

Parties

Appellant: C. Michail (represented by C. Meïdanis, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

— hold that the present application to set aside the judgment of the Civil Service Tribunal in Case F-34/06 is admissible and well founded;

— annul the disputed measures/decisions of the Civil Service Tribunal in Case F-34/06;

— determine the financial compensation for the non-material harm to the appellant, which amounts to EUR 120 000;

— make an order as to costs as laid down by law.

Grounds of appeal and main arguments

The appellant submits that, in the contested judgment, the Civil Service Tribunal (‘the CST’) erred in ruling upon his application for annulment of his career development report for 2004 and of the decision of the appointing authority rejecting the complaints submitted by him under Article 90(2) of the Staff Regulations.

More specifically, the appellant contends, first, that that the CST misinterpreted Article 43 of the Staff Regulations and the general provisions implementing that Article. Second, the CST misinterpreted the form of order sought by the application upon which it ruled, and it appraised the evidence wrongly. Third, the CST relied on contradictory reasoning in dismissing his application, with the result that fundamental procedural rights enjoyed by him were infringed. Fourth, the CST erred in refusing to rule on a particular claim or otherwise employed insufficient reasoning and, finally, it wrongly dismissed part of the application for lack of precision.
EN Official Journal of the European Union C 171/41

Action brought on 29 April 2008 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast)

(Case T-163/08)

(2008/C 171/79)

Language of the case: German

Parties

Applicant: Arbeitsgemeinschaft Golden Toast e.V. (Düsseldorf, Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

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

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 31 January 2008 (Case R 761/2007-1);

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

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Golden Toast’ for goods and services in Classes 5, 8, 9, 11, 14, 16, 21, 24, 25, 28-32, 39 and 41-44 (Application No 4 811 171).

Decision of the Examiner: Application refused in part, in respect of the goods in Classes 11 and 30.

Decision of the Board of Appeal: Dismissal of appeal.

Pleas in law: Breach of the obligation under the first sentence of Article 73 of Regulation (EC) No 40/94 (1) to state reasons, in that the appealed decision was based on lack of distinctive character within the meaning of Article 7(1)(b) of that regulation, although that was not examined. In addition, infringement of Article 7(1)(c) of Regulation No 40/94, in that the conditions for the finding of descriptiveness of the trade mark applied for were misconstrued.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).