ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 267/66

Action brought on 14 August 2009 — Concord Power Nordal v Commission

(Case T-317/09)

2009/C 267/120

Language of the case: German

Parties

Applicant: Concord Power Nordal GmbH (Hamburg, Germany) (represented by: C. von Hammerstein, C.-S. Schweer and C. Wünschmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission’s decision of 12 June 2009 (ref: CAB D(2009)) in so far as it concerns the gas pipeline project Ostseepipeline-Anbindungsleitung (‘OPAL’);

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

Pleas in law and main arguments

The applicant, which is responsible for the NORDAL gas pipeline project, objects to a letter from the Commission to the German energy regulatory authority, the Bundesnetzagentur, of 12 June 2009 in which the Commission requests the Bundesnetzagentur to make certain amendments to the exemption granted in respect of OPAL pursuant to Article 22 of Directive 2003/55/EC. (1) The applicant complains that the Commission failed to object fundamentally to the exemption from regulation granted in respect of some of OPAL’s transportation capacity to the Czech Republic.

In support of its claim, the applicant puts forward five pleas in law.

First, the applicant complains that OPAL does not satisfy the requirements of Article 22(1) of Directive 2003/55/EC, as it is not an interconnector, does not enhance competition or security of supply, does not amount to an extraordinary investment risk and infringes the unbundling requirement. In that respect, it is also submitted that the exemption will be detrimental to competition and to the effective functioning of the internal market and of the regulated system.

Second, the applicant submits that the conditions attached to the grant of the exemption are not capable of preventing harm to competition, or enforceable.

Further, the applicant alleges infringement of Article 82 EC, of its fundamental rights (namely the freedom of enterprise and of ownership) and of the principle of Community loyalty.

(1) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).
EN Official Journal of the European Union C 282/58

Action brought on 29 September 2009 — Mövenpick-Holding AG v OHIM (PASSIONATELY SWISS)

(Case T-377/09)

2009/C 282/108

Language in which the application was lodged: German

Parties

Applicant: Mövenpick-Holding AG (represented by: M. Taxhet, lawyer)

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

Form of order sought

— Vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and publish the application for registration of the mark PASSIONATELY SWISS (Application No 6 701 031),

— In the alternative, declare that Article 7(1)(b) and (c), and (2) of Regulation (EC) 40/94 does not preclude the registration of the mark, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and refer the case back to the Board of Appeal,

— In the alternative, vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and publish the mark PASSIONATELY SWISS (Application No 6 701 031) together with the declaration of the applicant that it disclaims any exclusive right to the element SWISS,

— In the alternative, declare that Article 7(1)(b) and (c), and (2) of Regulation (EC) 40/94 does not preclude the registration of the mark with the inclusion of the statement of the applicant, that it disclaims any exclusive right to the element SWISS, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 July 2009 and refer the case back to the Board of Appeal,

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘PASSIONATELY SWISS’ for goods and services in Classes 16, 35, 41, 43 and 44 (Application No 6 701 031)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation 207/2009 (1)

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 267/67

Action brought on 14 August 2009 — Planet v Commission

(Case T-320/09)

2009/C 267/122

Language of the case: Greek

Parties

Applicant: Planet AE, a public limited consultancy company (represented by: V. Christianos, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the two Commission (OLAF) decisions requesting the applicant’s registration initially in category W1a and subsequently in category W1b of the early warning system (EWS);

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action seeks the annulment, first, of the Commission decision requesting the applicant’s registration in category W1a of the early warning system (‘the EWS’) and, second, of the Commission decision requesting the amendment of that first decision in order to register the applicant from 25 May 2009 in the more unfavourable category W1b of the EWS.

The applicant submits that the contested measures are vitiated by infringement of essential procedural requirements, on account of a failure to comply with the conditions laid down by Decision 2008/969/EC (1) that relate to the procedural rules which must be followed in order for registrations entered in the EWS to be consistent with Community law. In particular, the applicant observes that, under Article 8(1) of that decision, the competent Commission organ responsible for signing a contract is obliged to inform in advance the natural or legal person in respect of whom registration of a warning in the EWS has been requested that data concerning him may be registered. Moreover, under Article 3(1)(c) of the decision, the registration must be accompanied by due reasoning.

The applicant further contends that the failure to comply with the obligations laid down by Article 8 of Decision 2008/969/EC also infringes basic principles and fundamental rights recognised by Community law. In the applicant’s submission, the Commission’s conduct is contrary to the principle of sound administration, laid down in Article 41 of the Charter of Fundamental Rights of the European Union, since the Commission did not duly inform the applicant in advance in accordance with the requirements of Article 8(1) of Decision 2008/969/EC, denying it the possibility of making its views known. At the same time, the Commission breached its duty of care. Furthermore, the Commission’s conduct infringes Article 1 of the Code of Good Administrative Behaviour applicable to Commission staff in their relations with the public.

Finally, the applicant contends that the Commission infringed the right to a prior hearing, rights of defence and the presumption of innocence since the applicant was not given the opportunity to make known its views and its objections regarding the decisions as to registration in the EWS which were to be adopted by the competent Commission organ.

(1) Commission Decision 2008/969/EC, Euratom of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies (OJ 2008 L 344, p. 125).
EN Official Journal of the European Union C 282/62

Action brought on 2 October 2009 — Rosenruist v OHIM (Representation of two curves crossed at one point inserted on a pocket)

(Case T-388/09)

2009/C 282/115

Language of the case: English

Parties

Applicant(s): Rosenruist — Gestão e serviços, Lda (Funchal, Portugal) (represented by S. Gonzáles Malabia and S. Rizzo, lawyers)

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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 237/2009-2; and

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

Pleas in law and main arguments

Community trade mark concerned: The mark representing two curves crossed at one point inserted on a pocket for goods and services in classes 18 and 25

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation 40/94 (which became Article 7(1)(b) of Council Regulation 207/2009) as the Board of Appeal wrongly found that the Community trade mark concerned lacked inherent distinctiveness.
EN Official Journal of the European Union C 312/36

Action brought on 14 October 2009 — Henkel v OHIM — JLO Holding (LIVE)

(Case T-414/09)

2009/C 312/59

Language in which the application was lodged: German

Parties

Applicant: Henkel AG & Co. KGaA (Düsseldorf, Germany) (represented by: C. Milbradt, 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: JLO Holding Company LLC (Santa Monica, United States of America)

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 30 July 2009 in case R 609/2008-1 insofar as it made an order for revocation of the Community trade mark No 984 245‘LIVE’ for the goods, soaps, perfumery, cosmetic products and make-up;

— 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: the word mark ‘LIVE’ for goods in Class 3 (Community trade mark No 984 245)

Proprietor of the Community trade mark: Henkel AG & Co. KGaA

Applicant for the declaration of invalidity: JLO Holding Company LLC

Decision of the Cancellation Division: Partial revocation of the Community trade mark

Decision of the Board of Appeal: Partial annulment of the Cancellation Division's decision and partial revocation of the Community trade mark

Pleas in law: Infringement of Articles 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009 (1), on the ground that it was proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor for the product group, soups, perfumery, cosmetic products and make-up

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 312/37

Action brought on 19 October 2009 — BSA v OHIM — Loblaws (PRÉSIDENT)

(Case T-420/09)

2009/C 312/61

Language in which the application was lodged: French

Parties

Applicant: BSA (Paris, France) (represented by: D. Masson, 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: Loblaws, Inc.

Form of order sought

— Annul the decision of 17 August 2009 of the Fourth Board of Appeal of OHIM, (Case R 1744/2008-4),

— Order OHIM to pay the entire costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BSA

Community trade mark concerned: the figurative mark ‘PRÉSIDENT’ for goods and services in Classes 5, 29, 30 and 42 — application for registration No 2 135 200

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

Mark or sign cited in opposition: the French word mark ‘President’s Choice’ for goods in Classes 5, 30, 31 and 32 and the Community figurative mark ‘PRESIDENT’S CHOICE’ for goods in Classes 30, 31 and 32 (Community trade mark No 1 872 407)

Decision of the Opposition Division: partial upholding of the opposition

Decision of the Board of Appeal: dismissal of appeal as inadmissible

Pleas in law: infringement of Article 59 of Regulation (EC) No 40/94 [now Article 60 of Regulation (EC) No 207/2009] and of Article 71 of Regulation (EC) No 2868/95, (1) and of the principle of the right to be heard in accordance with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1)
EN Official Journal of the European Union C 24/56

Action brought on 6 November 2009 — Centre national de la recherche scientifique v Commission

(Case T-449/09)

2010/C 24/100

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare the action admissible and well founded;

— order the Commission to refund the sum of EUR 97 399,55 allegedly receivable and claimed by the Commission pursuant to the contract in its debit note of 6 July 2009 (Ref No 3230906573) which gave rise to the set-off measure of 28 August 2009 (Ref BUDG/C3 D2009 10.5 — 1232), together with interest on late payment at the statutory rate in accordance with Belgian law governing the contract;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the Centre national de la recherche scientifique (CNRS) requests the Court to order the Commission to refund the amount receivable (EUR 97 399,55) referred to in debit note No 3230906573 of 6 July 2009, which is allegedly payable by the applicant under the NEMAGENETAG contract relating to a project under the Sixth Framework Programme for Research and Development, and which gave rise to a set-off measure dated 28 August 2009, together with interest on late payment.

The applicant puts forward two pleas in law in support of its application, alleging:

— failure to comply with the criteria for the definition and justification of eligible costs provided for in the NEMAGENETAG contract and with the principle of good faith in the implementation of agreements, thereby limiting, in some cases even depriving the applicant altogether of, the opportunity to adduce evidence of the proper performance of the contract;
EN Official Journal of the European Union C 37/41

Action brought on 7 December 2009 — ReValue Immobilienberatung v OHIM (ReValue)

(Case T-487/09)

2010/C 37/58

Language in which the application was lodged: German

Parties

Applicant: ReValue Immobilienberatung GmbH (Berlin, Germany) (represented by S. Fischoeder and M. Schork, lawyers)

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

Form of order sought

— Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Fourth Board of Appeal) of 7 October 2009 in Case R 531/2009-4;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark ‘ReValue’ for services in classes 35, 36, 42 and 45 (Application No 6 784 292)

Decision of the Examiner: registration rejected partially

Decision of the Board of Appeal: appeal dismissed

Pleas in law: infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1), on the grounds that the sign applied for is not descriptive in relation to the services in question and is not devoid of any distinctive character; infringement of Article 75 of Regulation No 207/2009, on the ground that the contested decision was not sufficiently reasoned in the necessary sections.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 24/54

Action brought on 4 November 2009 — Centre national de la recherche scientifique v Commission

(Case T-445/09)

2010/C 24/97

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of 17 August 2009 in so far as it relates to the set-off between the applicant’s claim on the Community under the Role of Skin contract, and the Community’s alleged claim on the applicant under the EURO-THYMAIDE contract;

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

Pleas in law and main arguments

By the present action, the Centre national de la recherche scientifique (CNRS) seeks the annulment of the set-off measure contained in Decision BUDG/C3 D(2009) 10.5 — 1232 of 17 August 2009, by which the Commission recovered sums paid to the applicant pursuant to the EURO-THYMAIDE contract No LSHB-CT-2003-503410 relating to a project under the Sixth Framework Programme for Research and Technological Development.

The applicant puts forward five pleas in law in support of its application, alleging:

— infringement of the rights of the defence, in that the decision was taken without the Commission having considered the information in the applicant’s detailed response to the final audit report;

— breach of the duty to state the reasons for the decision, as provided for under Article 253 EC, given the absence of essential information enabling the Commission’s reasoning in the decision to be understood;

— errors of law and manifest errors of assessment of the facts inasmuch as the Commission refused eligible costs by adjusting the eligibility criteria for expenditure incurred pursuant to the contract, and erroneously dismissed conclusive evidence of such expenditure;

— infringement of Article 73(1) of the Financial Regulation, in that the claim at issue could not be regarded as ‘certain, of a fixed amount and due’, owing to the serious nature of the challenge mounted against it;
EN Official Journal of the European Union C 37/42

Action brought on 4 December 2009 — Jager & Polacek v OHIM- RT Mediasolutions (REDTUBE)

(Case T-488/09)

2010/C 37/59

Language in which the application was lodged: German

Parties

Applicant: Jager & Polacek GmbH (Vienna, Austria) (represented by: A. Renck, V. von Bomhard, T. Dolde, lawyers)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: RT Mediasolutions s.r.o. (Brno, Czech Republic)

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) No R 442/2009-4 of 29 September 2009;

— order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: RT Mediasolutions s.r.o

Community trade mark concerned: the word mark ‘REDTUBE’ for goods and services in classes 9, 38 and 41 (Application No 6 096 309)

Proprietor of the mark or sign cited in the opposition proceedings: Jager & Polacek GmbH

Mark or sign cited in opposition: a non-registered trade mark ‘Redtube’

Decision of the Opposition Division: The notice of opposition is deemed not to have been entered

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law:

— Infringement of Article 8(2) of Regulation (EC) No 216/96 (1) in conjunction with Article 63(2) of Regulation (EC) No 207/2009 (2), since the applicant was not given an opportunity to submit a reply;

— Infringement of Article 80(1) and (2) of Regulation No 207/2009, since the decision on the admissibility of the opposition had not been legally annulled.

— Infringement of Article 83 of Regulation No 207/2009, and more particularly of the principle of legitimate expectations, in conjunction with Article 41(3) of the same Regulation, Rule 17(1) of Regulation (EC) No 2868/95 (3) und Article 8(3)(a) and (b) of Regulation (EC) No 2869/95 (4), since the applicant entertained reasonable expectations that the delay in lodging the opposition fee was remedied by the paymentwithin the prescribed time limit of the additional payment.

(1) Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of OHIM (OJ 1996 L 28, p. 11),

(2) Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)

(3) Council Regulation (EC) No 207/2009 of February 2009 on the Community trade mark (OJ L 78 of 24.3.2009, p.1)

(4) Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33)
EN Official Journal of the European Union C 63/47

Action brought on 30 November 2009 — Fercal Consultadoria e Serviços v OHIM

(Case T-474/09)

2010/C 63/84

Language in which the application was lodged: Portuguese

Parties

Applicant: Fercal — Consultadoria e Serviços, Ltda (Lisbon, Portugal) (represented by: A. Rodrigues, 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: Jacson of Scandinavia AB (Vollsjö, Sweden)

Form of order sought

— Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.) of 18 August 2009 in Case R 1253/2008-2 and, in consequence, maintenance in the register of Community trade mark No 1 077 858‘JACKSON SHOES’

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: JACKSON SHOES

Proprietor of the Community trade mark: applicant

Applicant for the declaration of invalidity: other party to the proceedings before the Board of Appeal

Trade mark right of applicant for the declaration: Swedish name mark ‘JACSON OF SCANDINAVIA AB’

Decision of the Cancellation Division: application for declaration of invalidity granted

Decision of the Board of Appeal: appeal dismissed

Pleas in law: Infringement of Articles 8(4) and 53(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, because there is no likelihood of confusion between the trade mark ‘JACKSON SHOES’ and the trade mark ‘JACSON OF SCANDINAVIA AB’.

Although there are graphic and phonetic similarities between the names JACKSON and JACSON, the signs must be compared by taking them in their entirety: ‘JACKSON SHOES’/‘JACSON OF SCANDINAVIA AB’.

It is impossible to recognise (merely on the basis of a Swedish business name) an exclusive right in all the Member States of the European Union to use a name commonly used in many other countries of the Union by thousands of people and by other undertakings, thus constituting a sign of little distinctive character. In consequence, third parties cannot be prevented from again using that sign or another sign resembling it in combination with other elements.

In addition, an average consumer will easily realise that these are different kinds of distinctive signs: one consists of a name mark and the other of a business name, in this case with the addition of the letters AB.