ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 123/22

Action brought on 4 March 2013 — Pro-Aqua International/OHIM — Rexair (WET DUST CAN’T FLY)

(Case T-133/13)

2013/C 123/37

Language in which the application was lodged: English

Parties

Applicant: Pro-Aqua International GmbH (Ansbach, Germany) (represented by: T. Raible, lawyer)

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

Other party to the proceedings before the Board of Appeal: Rexair LLC (Troy, United States)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 December 2012 (in case R 211/2012-2);

— Order OHIM to pay the costs, including those incurred in the proceedings before OHIM and the Board of Appeal of OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘WET DUST CAN’T FLY’ for products and services of classes 3, 7 and 37 (Community trade mark registration No 6 668 073)

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

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

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

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009.
1.

First plea in law: infringement of Article 107(3)(c) TFEU By their first plea in law, the applicants submit that the Commission wrongly found the aid at issue to be compatible with the internal market, since the requirements of Article 107(3)(c) TFEU were not satisfied. They submit that the aid does not serve a purpose in the common interest. In that respect, they also argue, inter alia, that this can be determined only in the case of a proven market deficiency, which is lacking in this instance. Moreover, they argue that there is no compatibility for the purposes of Article 106(2) TFEU. Furthermore, the applicants claim that the aid is not appropriate to address the alleged market efficiency problem. The aid also provides no incentive. The Commission merely assumes that the aid has an incentive effect. The aid is also not appropriate. The Commission merely assumes that the national authorities would ensure that the individual aid payments were proportionate, and it bases its misassumption on the status of the association of being in the common interest. The applicants accuse the Commission of having failed to balance the various interests correctly, in that it failed to weigh up the positive and negative effects of the aid. In that respect, they claim that, in the case of doubt, operating aid (and the aid granted is primarily operating aid) is not compatible with the internal market.
—

For those reasons, the applicant maintains: first, that it is under no obligation to repay as unduly paid the whole of the sum which the Commission paid to it in respect of the POCEMON project; secondly, it is under no obligation to pay to the Commission liquidated damages in respect of the POCEMON project, and thirdly that the Commission is not entitled to offset against sums which it is obliged to pay to the applicant sums which are not certain, of a fixed amount and due.
Third plea, alleging the infringement of the principle of proportionality and of Article 22a(1)(b) of Directive 2001/83/EC

The applicant claims in the context of this third plea that, instead of amending the authorisations affected with immediate effect, an efficacy study within the meaning of Article 22(a)(1)(b) of Directive 2001/83/EC should have been ordered as a less intrusive measure. The applicant claims that the Commission did not address this possibility with sufficient rigour and that it was rejected by the scientific committee for medicinal products for human use of the EMA [European Medicines Agency] on grounds which are not legally sound.
EN Official Journal of the European Union C 156/52

Appeal brought on 8 April 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 28 January 2013 in Case F-100/12, Marcuccio v Commission

(Case T-205/13 P)

2013/C 156/97

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the Court should:

— Annul in its entirety and without exception the order under appeal;

— Refer the case back to the Civil Service Tribunal.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those set out in Case T-203/13 P Marcuccio v Commission.
1.

First plea in law, alleging that Council Decision 2012/829/CFSP and Council Implementing Regulation (EU) No 1264/2012 were adopted in violation of the applicant's rights of the defence and its right to effective judicial protection. The Council has breached its obligation to give reasons since the reasons given by the Council are insufficient for the applicant to understand the basis on which it has been subjected to restrictive measures. The Council has violated the applicant’s rights of defence by reason of its failure to provide the applicant with access to the Council’s file on it and because that failure has had as a consequence that the applicant been unable to make known its views on the evidence adduced to justify the measures imposed on it. The failures of the Council to give reasons for its decision and provide the applicant with access to its file have also infringed the applicant’s right to effective judicial protection.
EN Official Journal of the European Union C 171/28

Action brought on 28 March 2013 — Skype/OHIM — British Sky Broadcasting and Sky IP International (SKYPE)

(Case T-183/13)

2013/C 171/54

Language in which the application was lodged: English

Parties

Applicant: Skype (Dublin, Ireland) (represented by: I. Fowler, Solicitor, J. Schmitt, lawyer and J. Mellor, QC)

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)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of OHIM of 30 January 2013 in Case R 2398/2010-4;

— Order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SKYPE’ — Community trade mark application No 3 660 065 for services in class 38

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: The word mark ‘SKY’ for goods and services in classes 9, 38 and 41 — Community trade mark application No 3 203 411

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 171/28

Action brought on 28 March 2013 — Skype/OHIM — British Sky Broadcasting and Sky IP International (SKYPE)

(Case T-184/13)

2013/C 171/55

Language in which the application was lodged: English

Parties

Applicant: Skype (Dublin, Ireland) (represented by: I. Fowler, Solicitor, J. Schmitt, lawyer, and J. Mellor, QC)

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)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of OHIM of 30 January 2013 in Case R 121/2011-4;

— Order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SKYPE’ — Community trade mark application No 4 521 084 for products and services in classes 9, 38 and 42

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: The word mark ‘SKY’ for goods and services in classes 9, 38, 41 and 42 — Community trade mark application No 3 203 411

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) Council Regulation No 207/2009.
2.

Second plea in law, alleging that the Commission committed errors of law and fact, in that it wrongly concluded that the Northern Ireland Department of Agriculture and Rural Development (‘DARD’) failed to apply, properly or at all, provisions on recoveries of undue payments, penalties, and intentional non compliance, and that the Commission thus overestimated and/or failed to take into account considerations relevant to the scale of possible loss to the EU funds. In particular, the Commission: — wrongly criticised an alleged «systematic» recalculation of payment entitlements by DARD; — wrongly claimed that errors in 2005 could have material effects on the historical element of the entitlement value; — adopted the wrong method of calculation of overpayments; — adopted the wrong approach to penalties, in particular by: — adopting the wrong method of calculating penalties; and — wrongly claiming that a penalty should be imposed for each year in cases where a penalty was applicable in 2005 but not in subsequent claim years, in this case in 2009, where over-payment resulted from the same error as that penalised in 2005; — adopted the wrong approach to intentional non-compliance.
EN Official Journal of the European Union C 178/15

Action brought on 17 April 2013 — Bayer Intellectual Property/OHIM — Interhygiene (INTERFACE)

(Case T-227/13)

2013/C 178/25

Language in which the application was lodged: English

Parties

Applicant: Bayer Intellectual Property GmbH (Monheim am Rhein, Germany) (represented by: E. Armijo Chávarri, lawyer)

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

Other party to the proceedings before the Board of Appeal: Interhygiene GmbH (Cuxhaven, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision for being contrary to law insofar as it declares that the INTERFACE Community trademark application is incompatible with the earlier Interfog trademark;

— Expressly sentence OHIM to court fees.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘INTERFACE’ for goods in class 5 — Community trade mark application 8 133 977

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 of the word mark ‘Interfog’ for goods in class 5

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.
EN Official Journal of the European Union C 207/39

Action brought on 2 May 2013 — MHCS/OHIM — Ambra (DORATO)

(Case T-249/13)

2013/C 207/65

Language in which the application was lodged: English

Parties

Applicant: MHCS (Epernay, France) (represented by: P. Boutron, N. Moya Fernández and L-E. Balleydier, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ambra S.A. (Warsaw, Poland)

Form of order sought

The applicant claims that the Court should:

— Declare admissible the here concerned appeal and enclosures;

— Annul the Second Board of Appeal’s decision;

— Condemn the OHIM and the intervener to bear the costs.

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 containing a device of a bottle neck label and the word element ‘DORATO’ for goods in class 33 — Community trade mark application No 9 131 228

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

Mark or sign cited in opposition: Figurative marks containing a device of a bottle neck label for goods in class 33

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.
7.

Seventh plea in law, concerning the breach of Articles 1 and 6 of Regulation No 1/58; Article 1d(1) and (6) and Article 28(f) of the Staff Regulations, Article 1(1)(f) of Annex III to the Staff Regulations; and Article 296(2) TFEU (failure to state reasons) and breach of the principle of proportionality. Distortion of the facts. — It is argued in this regard that the Commission justified the restriction to three languages by the requirement that the new recruits should be able to communicate within the institutions. That justification distorts the facts because it is not the case that the three languages in question are the ones most used for communication between the various language groups within the institutions; and it is disproportionate with regard to the restriction of a fundamental right such as the right not to suffer discrimination on grounds of language.
EN Official Journal of the European Union C 215/14

Action brought on 17 May 2013 — El Corte Inglés v OHIM — Gaffashion (BAUSS)

(Case T-267/13)

2013/C 215/19

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Gaffashion — Comércio de Acessórios de Moda, Lda (Viana do Castelo, Portugal)

Form of order sought

The applicant claims that the General Court should:

— annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 February 2013 in Case R 2295/2011-2, in so far as, by dismissing the appeal brought by the applicant, it upheld the decision of the Opposition Division to grant in part the Community trade mark No 9 093 733‘BAUSS’ (word);

— order the party or parties opposing this action to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Gaffashion — Comércio de Acessórios de Moda, Lda

Community trade mark concerned: Word mark ‘BAUSS’ for goods and services in Classes 18, 25 and 35 — Community trade mark application No 9 093 733

Proprietor of the mark or sign cited in the opposition proceedings: Applicant

Mark or sign cited in opposition: Figurative marks with word elements ‘BASS 3 TRES’, ‘BASS 10 DIEZ’ and ‘BASS 20 VEINTE’ for goods and services in Classes 18, 25 and 35

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 233/12

Action brought on 30 April 2013 — Kompas MTS v Parliament and Others

(Case T-315/13)

2013/C 233/20

Language of the case: German

Parties

Applicant: Kompas mejni turistični servis d.d. (Kompas MTS d.d.) (Ljubljana, Slovenia) (represented by: J. Tischler, lawyer)

Defendants: European Parliament, European Commission and Council of the European Union

Form of order sought

The applicant claims that the Court should:

— Order the European Union to pay the sum of EUR 846 000 plus interest at the rate of 8 % or declare that a right to compensation for damage against the European Union exists;

— Order the defendants to pay the necessary costs pursuant to Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The applicant seeks compensation for damage in essence on the basis of the adoption of Article 5(6)(e) of Directive 2001/37/EC (1). It takes the view that it was only due to the adoption of that provision that it was possible for the Austrian legislature to restrict the importation of tobacco products on which the text was not in German. The applicant submits that that quantitative restriction on imports was caused by the adoption of Directive 2001/37, by which the defendants infringed the principle of proportionality, the principle of non-discrimination, the fundamental right to property and the freedom to conduct a business.

(1) Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ 2001 L 194, p. 26).
EN Official Journal of the European Union C 245/15

Action brought on 2 July 2013 — Construcción, Promociones e Instalaciones v OHIM — Copisa Proyectos y Mantenimientos Industriales (CPI COPISA INDUSTRIAL)

(Case T-345/13)

2013/C 245/18

Language in which the application was lodged: Spanish

Parties

Applicant: Construcción, Promociones e Instalaciones, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Copisa Proyectos y Mantenimientos Industriales, SL (L’Hospitalet de Llobregat, Spain)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 April 2013 in Case R 1935/2012-2, granting Community trade mark No 9 600 313‘CPI COPISA INDUSTRIAL’ (MIXTA), and order the defendant and, where appropriate, the other party to the proceedings to pay the costs, if that other party appears and contests the action.

Pleas in law and main arguments

Applicant for a Community trade mark: Copisa Proyectos y Mantenimientos Industriales, SL

Community trade mark concerned: Figurative mark with the word elements ‘CPI COPISA INDUSTRIAL’ for services in Class 37 — Application for Community trade mark No 9 600 313

Proprietor of the mark or sign cited in the opposition proceedings: Applicant.

Mark or sign cited in opposition: National figurative mark with the word elements ‘Cpi construcción promociones e instalaciones, s.a.’ and the national registered trade name No 85 647‘Construcción, Promociones e Instalaciones, S.A. — C.P.I.’ for services in Class 37.

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 42(2) and (3) of Regulation No 207/2009;

— Infringement of Article 8(1)(b) of Regulation No 207/2009;
EN Official Journal of the European Union C 260/43

Action brought on 28 June 2013 — Out of the blue/OHIM — Dubois et al. (FUNNY BANDS)

(Case T-344/13)

2013/C 260/77

Language in which the application was lodged: English

Parties

Applicant: Out of the blue KG (Lilienthal, Germany) (represented by: G. Hasselblatt and D. Kipping, lawyers)

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

Other party to the proceedings before the Board of Appeal: Frédéric Dubois et al. (Lasne, Belgium)

Form of order sought

The applicant claims that the Court should:

— Overturn the Decision of the Second Board of Appeal of 4 April 2013, Case R 542/2012-2;

— Order OHIM to bear its own costs as well as the costs of the applicant;

— In the event that Mr. DUBOIS joins in these proceedings as an intervening party, order the intervening party to bear its own costs.

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 word mark containing the word element ‘FUNNY BANDS’ for goods and services in classes 14, 17 and 35 — Community trade mark application No 9 350 794

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

Mark or sign cited in opposition: German non-registered sign ‘FUNNY BANDS’ several goods and services and activities

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 252/36

Action brought on 24 June 2013 — Borghezio v Parliament

(Case T-336/13)

2013/C 252/61

Language of the case: French

Parties

Applicant: Mario Borghezio (Turin, Italy) (represented by: H. Laquay, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

— declare the application admissible and founded and, consequently, annul the decision of the European Parliament taken in the form of a declaration of its President at the plenary session of 10 June 2013, according to which, as from 3 June 2013, the applicant is to be regarded as as a ‘non-attached’ member and is thus excluded from the political group ‘Europe of Freedom and Democracy’ as from that date;

— determine the costs in accordance with the law.

Pleas in law and main arguments

In support of his action, the applicant relies — in addition to the fact that the decision declaring him to be a non-attached member produces legal effects since it prevents him from carry out his parliamentary mandate in the same conditions as the members of Parliament who are affiliated to a political group — on two pleas in law relating to the substance of the case. The applicant submits that the Parliament is required to assess whether there has been a serious and manifest infringement of the statutes of the political group or of a general principle of law.

1. By his first ground of appeal, the applicant submits that there has been a serious and manifest infringement of the statutes of the political group ‘Europe of Freedom and Democracy’, since the decision to exclude the applicant from the group was taken prior to the group’s next meeting, contrary to what is stated in its statutes.