ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 6/38

Action brought on 22 October 2008 — Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA)

(Case T-472/08)

(2009/C 6/75)

Language in which the application was lodged: English

Parties

Applicant: Companhia Muller de Bebidas (Pirassununga, Brazil) (represented by: G. Da Cunha Ferreira and I. Bairrão, lawyers)

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

Other party to the proceedings before the Board of Appeal: Missiato Industria e Comercio Lda (Santa Rita do Passa Quatro, Brazil)

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 4 July 2008 in case R 1687/2007-1, inasmuch as it upheld the decision allowing the registration of the Community trade mark concerned;

— Declare the registration of the Community trade mark concerned invalid for all goods protected, on the basis that there is a likelihood of confusion with the trade marks cited in the opposition proceedings; and

— Order the defendant and the other party to the proceeding before the Board of Appeal to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘61 A NOSSA ALEGRIA’ for goods in class 33

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

Mark or sign cited: Portuguese trade mark registration No 273 105 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese trade mark registration No 331 952 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Benelux trade mark registration No 576 901 of the figurative mark ‘CACHAÇA 51’ for goods in classes 32 and 33; Danish trade mark registration No VR 1998 03649 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; United Kingdom trade mark registration No 2 248 316 of the series of figurative marks ‘CACHAÇA 51’ for goods in class 33; Spanish trade mark registration No 2 354 943 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; German trade mark registration No 30 071 545 of the figurative mark ‘CACHAÇA 51’; Austrian trade mark registration No 161 564 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known figurative trade mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known word trade mark ‘CACHAÇA 51’ for goods in class 33.

Decision of the Opposition Division: Rejected 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 No 40/94 as the Board of Appeal erred in its finding that there is no likelihood of confusion between the conflicting trade marks; Infringement of Article 52(1)(a) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the evidence submitted by the applicant was not sufficient to prove the well known character of the earlier trade marks in Portugal, or, at least its enhanced distinctiveness as a whole.
EN Official Journal of the European Union C 32/46

Action brought on 1 December 2008 — Agatha Ruiz de la Prada de Sentmenat v OHIM — Mary Quant Cosmetics Japan (AGATHA RUIZ DE LA PRADA)

(Case T-523/08)

(2009/C 32/88)

Language in which the application was lodged: Spanish

Parties

Applicant: Agatha Ruiz de la Prada de Sentmenat (Madrid, Spain) (represented by: R. Bercovitz Álvarez, 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: Mary Quant Cosmetics Japan Ltd (Tokyo, Japan)

Form of order sought

— Paragraphs 1 and 3 of the contested decision be annulled and replaced with a different decision in which registration of Community trade mark No 3.291.234 is granted in respect of all the goods requested in Class 3 of the Classification (including ‘soaps; perfumery, essential oils, cosmetics, hair lotions’) and MARY QUANT Cosmetics Japan Ltd. be ordered to pay the costs of the opposition proceedings, and

— the defendant, and any intervening or other party, be ordered to pay the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Agatha Ruiz de la Prada de Sentmenat

Community trade mark concerned: Figurative mark representing a pink flower with a yellow centre on a light green background with the wording AGATHA RUIZ DE LA PRADA (application No 3.291.234) for goods in, inter alia, Classes 3, 5, 14 and 21.

Proprietor of the mark or sign cited in the opposition proceedings: MARY QUANT Cosmetics Japan Ltd.

Mark or sign cited in opposition: Figurative mark representing a black flower with a black centre surrounded by a white outline: British trade marks for goods in Classes 3 and 5, and a Community trade mark for goods in Classes 3 and 21.

Decision of the Opposition Division: The opposition was rejected.

Decision of the Board of Appeal: The appeal was upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 44/51

Action brought on 27 Novembre 2008 — Eriksen/Commission

(Case T-516/08)

(2009/C 44/90)

Language of the case: English

Parties

Applicant: Heinz Helmuth Eriksen (Ebeltoft, Denmark) (represented by: I. Anderson, advocate)

Defendant: Commission of the European Communities

Form of order sought

— order the Commission to pay to the applicant the sum of 800 000 EUR or such other sum as the Court may considerable just and equitable for past, present and future pain, suffering and diminution of the enjoyment of life from serious impairments to his health resulting from the Commission's capricious and unlawful refusal to enforce the implementation of medical monitoring of former Thule workers for radiation related illnesses and conditions;

— order the Commission to pay to the applicant or the medical treating facilities or care givers, the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in the first claim above, which are not available to him through the socialized medical system of his Member State;

— order the Commission to pay reasonable legal costs and disbursements incurred by the applicant in bringing the present proceedings.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for non-contractual liability arising from the damages it claims to have incurred as a result of the alleged illegal refusal by the Commission to comply with plenary resolution of the European Parliament (1) and to enforce the application by Denmark of the provisions of Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (2) to the case of workers, including the applicant, involved in a nuclear accident in Thule, Greenland.

(1) European Parliament report of 20 April 2007 on the public health consequences of the 1968 Thule crash (Petition 720/2002) [2006/2012(INI)].

(2) OJ L 159, p. 1.
EN Official Journal of the European Union C 32/44

Action brought on 7 November 2008 — Ryanair/Commission

(Case T-509/08)

(2009/C 32/85)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void and that the Commission's decision of 26 September 2008 refusing access to the same documents is non-existent;

— alternatively, declare in accordance with Articles 230 and 231 EC that the Commission's decision of 26 September 2008 refusing access to the documents for which access was requested by the applicant in an application dated 20 June 2008 is void;

— order the Commission to pay the costs incurred by the applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Bratislava airport. The said decision was followed by the express decision of 26 September 2008. The annulment of the express decision is alternatively sought by the applicant in the present case.

The pleas in law and main arguments relied on by the applicant are identical to those relied on in Case T-494/08 Ryanair v Commission.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.
EN Official Journal of the European Union C 44/55

Action brought on 1 December 2008 — Granuband v OHIM — Granuflex (GRANUflex)

(Case T-534/08)

(2009/C 44/96)

Language in which the application was lodged: Dutch

Parties

Applicant: Granuband BV (Amsterdam, Netherlands) (represented by: M. Ellens, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Granuflex Ipari és Kereskedelmi Kft (Budapest, Hungary)

Form of order sought

— Annul, or at least review, the decision of OHIM of 15 September 2008, served on 24 September 2008, on grounds of infringement of the provisions of Article 52(1), in conjunction with Article 8(4), of Regulation No 40/94, and

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the figurative mark GRANUFLEX for goods in Classes 17, 19 and 27 — Community Trade Mark No 943118

Proprietor of the Community trade mark: Granuband BV

Applicant for the declaration of invalidity of the Community trade mark: Granuflex Ipari és Kereskedelmi Kft.

Trade-mark right of applicant for the declaration of invalidity: commercial designation GRANUFLEX for goods and services in Classes 17, 19, 27 and 37

Decision of the Cancellation Division: declaration that the Community trade mark is invalid

Decision of the Board of Appeal: dismissal of the appeal brought by the applicant

Pleas in law: breach of Articles 52(1)(c) and 8(4) of Regulation No 40/94.
EN Official Journal of the European Union C 44/56

Action brought on 12 December 2008 — Esso e.a./Commission

(Case T-540/08)

(2009/C 44/98)

Language of the case: English

Parties

Applicants: Esso Société Anonyme Française (Courbevoie, France), Esso Deutschland GmbH (Hamburg, Germany), ExxonMobil Petroleum and Chemical BVBA (Antwerpen, Belgium), Exxon Mobil Corp. (Irving, United States) (represented by: R. Snelders, R. Subiotto, L.-P. Rudolf, M. Piergiovanni, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— partially annul the Commission's decision of 1 October 2008, relating to a proceeding under Article 81 EC (Case COMP/39.181 — Candle waxes);

— reduce the fine imposed on the applicants by that decision, and

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

Pleas in law and main arguments

The applicants seek the partial annulment of Commission's decision C(2008) 5476 final of 1 October 2008, in Case COMP/39.181 — Candle waxes (‘the contested decision’) and a reduction of the fines imposed on the applicants.

In support of their claims, the applicants put forward the following two main pleas in law:

By their first plea, the applicants submit that the decision errs in law by basing the calculation of Esso Société Anonyme Française's (‘Esso’) fine on a methodology that fails to reflect the undisputed fact that, before the merger between Exxon and Mobil, Exxon's paraffin wax business did not participate in the infringement. The applicants claim that under the contested decision, Esso is fined as if Exxon had participated in the infringement for seven years prior to the merger, even though the contested decision acknowledges it did not do so. As a result, the contested decision overstates the relative weight of Esso in the infringement and violates the principles of equality and proportionality, as well as Article 23(3) of Regulation (EC) No 1/2003 (1) and the 2006 Fining Guidelines (2).

By their second plea, the applicants submit that the contested decision errs in law by finding that the applicants' participation in the paraffin wax part of the infringement ended only in November 2003. In particular, the applicants contend that the contested decision fails to meet the Commission's burden of proof in establishing the duration of the applicant's participation in the paraffin wax part of the infringement. Moreover, the applicants claim that the contested decision fails to draw the proper conclusions from the undisputed fact that the applicants did not participate in — and were not informed of the outcome of — any ‘Technical Meetings’ held after 27/28 February 2003.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210 p. 2)
EN Official Journal of the European Union C 82/25

Action brought on 3 October 2008 — CISAC v Commission

(Case T-442/08)

(2009/C 82/46)

Language of the case: English

Parties

Applicant: International Confederation of Societies of Authors and Composers (CISAC) (Neuilly-sur-Seine, France) (represented by: J.-F. Bellis and K. Van Hove, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COM/C2/38.698 — CISAC); and

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application, the applicant seeks the annulment, pursuant to Article 230 EC, of Article 3 of the Commission decision of 16 July 2008 (Case COM/C2/38.698 — CISAC), determining that 24 of CISAC's EEA based societies engaged in a concerted practice in violation of Article 81 EC and Article 53 EEA ‘by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society’.

The applicant submits that the decision limits the finding of infringement to three specific forms of exploitation of performing rights (internet, satellite transmission and cable retransmission), whilst the reciprocal representation agreements generally cover all forms of exploitation of performing rights.

In support of its application, the applicant raises the following two main pleas in law:

(i) According to the applicant's submissions, the Commission made an error of assessment and infringed Article 81 EC as well as Article 253 EC by determining that the parallel territorial delineation resulting from the reciprocal representation agreements concluded by the EEA CISAC members constitutes a concerted practice. The applicant considers that the presence of a territorial delineation clause in all the reciprocal representation agreements concluded by its members is not the product of a concerted practice to restrict competition. Rather, this state of affairs exists because all the societies find it in the interest of their members to include such a clause in their reciprocal representation agreements.
EN Official Journal of the European Union C 55/38

Action brought on 17 December 2008 — Corsica Ferries France v Commission

(Case T-565/08)

(2009/C 55/68)

Language of the case: French

Parties

Applicant: Corsica Ferries France SAS (Bastia, France) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— declare the present action admissible;

— annul the Commission Decision of 8 July 2008 in relation to restructuring aid which France plans to grant to Société Nationale Maritime Corse-Méditerranée (SNCM);

— order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 3182 final of 8 July 2008, in which the Commission had stated that:

— the compensation paid by the French Republic to Société Nationale Maritime Corse-Méditerranée (‘SNCM’), amounting to EUR 53.48 million in respect of public service obligations, constitutes illegal State aid which is nevertheless compatible with the common market;

— the negative selling price of SNCM of EUR 158 million; the implementation, by Compagnie Générale Maritime et Financière (‘CGMF’), of social measures in respect of employees in the amount of EUR 38.5 million; and the joint and concomitant re-capitalisation of SNCM by CGMF in the amount of EUR 8.75 million do not constitute State aid; and

— restructuring aid amounting to EUR 15.81 million which the French Republic granted to SNCM constitutes illegal State aid which is nevertheless compatible with the common market;

In support of its action, the applicant puts forward two pleas in law alleging:

— failure to state reasons and breach of the applicant's rights of defence and its right to an effective judicial remedy, insofar as too much of the data and information in the contested decision was blacked out for its content, reasoning and scope to be understood;
EN Official Journal of the European Union C 55/49

Action brought on 21 January 2009 — CNOP and CCG v Commission

(Case T-23/09)

(2009/C 55/88)

Language of the case: French

Parties

Applicants: Conseil National de l'Ordre des Pharmaciens (CNOP) (Paris, France), Conseil Central de la Section G de l'Ordre National des Pharmaciens (CCG) (Paris, France) (represented by: Y.-R. Guillou, H. Speyart and T. Verstraeten, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— annul the contested decision; and

— order the Commission to bear its own costs and to pay those of the applicants.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2008) 6494 of 29 October 2008 in which the Commission, pursuant to Article 20(4) of Regulation No 1/2003 (1), ordered the applicants to submit to an inspection concerning their possible participation in and/or implementation of agreements or concerted practices contrary to the provisions of Articles 81 EC and/or 82 EC.

That conduct took the form of decisions aimed at preventing pharmacists and/or legal persons from gaining access to the market in bio-medical analysis services, to restrict their activities on that market, or to exclude them from that market, inter alia, by not registering pharmacists and/or legal persons wishing to offer bio-medical analysis services in the Section G List, and by not updating their registration on that list.

In support of their actions, the applicants put forward three pleas in law alleging:

— breach of the principle that the decisions of the Community institutions must be addressed to entities having legal personality, as the Ordre National des Pharmaciens is also an addressee of the contested decisions although it has no legal personality;

— breach of the duty to state reasons, as the Commission did not identify the entity which may constitute an undertaking or an association of undertakings, within the meaning of Article 20(4) of Regulation No 1/2003, and as it did not state the reasons justifying such a categorisation;

— infringement of Article 20(4) of Regulation No 1/2003, inasmuch as neither the applicants, nor the Ordre National des Pharmaciens (i) are undertakings, since they do not carry out any economic activity, or (ii) could be categorised as associations of undertakings since they group together a body of members who do not all carry out an economic activity, and they do not satisfy the circumstantial requirements for identifying an association of undertakings, set out by the Court, in the case of professional associations responsible for public tasks.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 69/48

Action brought on 16 January 2009 — Eurotel SpA v OHIM

(Case T-21/09)

(2009/C 69/106)

Language in which the application was lodged: Italian

Parties

Applicant: Eurotel SpA (Milan, Italy) (represented by: F. Paola, 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: DVB Project

Form of order sought

— Annul the decision of the Board of Appeal and, consequently, declare invalid the figurative Community mark ‘DVB’, which is manifestly contrary to the spirit and wording of Article 7(1)(b), (c) and (d) of the Regulation on the Community trade mark;

— 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: figurative mark ‘DVB’ (registration application No 2.75.771), for goods and services in Classes 9 and 38.

Proprietor of the Community trade mark: DVB Project.

Applicant for the declaration of invalidity: the applicant.

Trade mark right of applicant for the declaration: the party seeking a declaration of invalidity is not claiming any trade mark right, but argues that the mark in question is descriptive and generic.

Decision of the Cancellation Division: application for declaration of invalidity dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b), (c) and (d) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
EN Official Journal of the European Union C 69/49

Action brought on 20 January 2009 — Katjes Fassin v OHIM (shape of a panda face)

(Case T-22/09)

(2009/C 69/107)

Language in which the application was lodged: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany) (represented by T. Schmitz, lawyer)

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM of 13 November 2008 in Case R 1299/2006-4;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: a three-dimensional mark, showing a chocolate panda face, for goods in Class 30 — Application No 4 505 161

Decision of the Examiner: Refusal 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 40/94 (1), as the registered mark has the necessary distinctive character.

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