ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 139/24

Action brought on 11 March 2011 — TMS Trademark-Schutzrechtsverwertungsgesellschaft v OHIM

(Case T-152/11)

2011/C 139/45

Language in which the application was lodged: German

Parties

Applicant: TMS Trademark-Schutzrechtsverwertungsgesellschaft mbH (Düsseldorf, Germany) (represented by: B. Hein and M.-H. Hoffmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Comercial Jacinto Parera, SA (Barcelona, Spain)

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 16 December 2010 in Case R 449/2009-2;

— Order the defendant to pay the costs, including those incurred during the proceedings before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: Figurative mark ‘MAD’ for goods in Class 25.

Proprietor of the Community trade mark: Comercial Jacinto Parera, SA.

Party applying for revocation of the Community trade mark: The applicant.

Decision of the Cancellation Division: Rejection in part of the claim.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 15 and Article 51 of Regulation (EC) No 207/2009 (1) and of Rule 22 of Regulation (EC) No 2968/95, (2) in that the Board of Appeal should not have reached the conclusion on the basis of the documents submitted as proof of use that the figurative mark ‘MAD’ is in genuine use for ‘items of clothing’.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2) 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).
5.

Fifth plea, alleging infringement of the right to property, in that Regulation No 530/2008 involved the compulsory cessation of the applicant’s business of fishing for bluefin tuna, whereas he had a fishing permit granted by the Minstry of Agriculture and Fisheries for the period from 1 April 2008 to 30 June 2008 — that authorisation constituting an indispensable part of the applicant’s economic interests. He argues: — that he has suffered a serious economic loss in connection with the carrying on of his business, bluefin tuna coming from fishing being ‘property’ within the meaning of Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms, and — that it constitutes a non-material debt in that the applicant had the legitimate expectation thereof.
—

Annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire, in so far as they concern the applicants;
EN Official Journal of the European Union C 194/15

Action brought on 18 April 2011 — Progust v OHIM — Sopralex & Vosmarques (IMPERIA)

(Case T-216/11)

2011/C 194/24

Language in which the application was lodged: Spanish

Parties

Applicant: Progust, SL (Girona, Spain) (represented by: M. E. López Camba 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: Sopralex & Vosmarques SA (Brussels, Belgium)

Form of order sought

The applicant requests the Court to:

— annul the decision of the First Board of Appeal in Case R 1036/2010-1 in its entirety;

— order OHIM to pay the costs incurred by Progust, SL;

— order Sopralex & Vosmarques SA to pay the costs incurred by Progust, SL.

Pleas in law and main arguments

Applicant for a Community trade mark: Progust, SL.

Community trade mark concerned: Figurative mark containing the word element ‘IMPERIA’ (application for registration No 7.008.154), for goods and services in Classes 29, 30, 31, 32 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: Sopralex & Vosmarques SA.

Mark or sign cited in opposition: Community figurative mark (No 3.260.288), containing the word element ‘IMPERIAL’ for goods in Class 29.

Decision of the Opposition Division: Opposition upheld and application for registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 211/31

Action brought on 23 May 2011 — Xeda International/Commission

(Case T-269/11)

2011/C 211/66

Language of the case: English

Parties

Applicant: Xeda International SA (Saint Andiol, France) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

— Declare the Application admissible and well-founded.

— Annul the Contested Decision.

— Order the Defendant to pay the costs and expenses of these proceedings.

Pleas in law and main arguments

The Applicant seeks the annulment of Commission Decision 2011/143/EU of 3 March 2011 concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ L 59, p. 71).

As a result of the contested Decision, the entry for ethoxyquin in Decision 2008/941/EC has been deleted and ethoxyquin shall not be included as an active substance in Annex I to Directive 91/414/EEC. As a result, the applicant will no longer be allowed to produce and sell ethoxyquin and ethoxyquin-based products in the European Union and will lose its product registrations in the Member States as of 3 September 2011.

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

1. First plea in law, alleging a manifest error of assessment. According to the applicant, the contested Decision effectively bans the use of ethoxyquin in plant protection products on the basis of a scientific concern and alleged data gaps mentioned in recital 6 thereof, each of which was either adequately addressed by the applicant or was not a concern justifying non-inclusion.

2. Second plea in law, alleging an infringement of the applicant’s right of defence and essential procedural requirements. According to the applicant the contested Decision infringes the applicant’s right of defence and its right to a fair hearing by failing to give the applicant sufficient opportunity and time to address concerns raised late in the procedure, and failing to carefully consider its comments in relation to alleged data gaps.
EN Official Journal of the European Union C 204/26

Action brought on 3 May 2011 — Sigma Alimentos Exterior v Commission

(Case T-239/11)

2011/C 204/47

Language of the case: Spanish

Parties

Applicant: Sigma Alimentos Exterior SL (Madrid, Spain) (represented by: M. Ferre Navarrete, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of the Texto Refundido de la Ley del Impuesto sobre Sociedades (‘TRLIS’) (the consolidated text of the Spanish Company Tax Act) contains elements of State aid;

— alternatively, annul Article 1(1) of the contested decision to the extent that it declares that Article 12(5) of TRLIS contains elements of State aid when applied to acquisitions of shareholdings which involve acquisition of control;

— alternatively, annul Article 4 of the contested decision to the extent that it orders recovery in respect of transactions carried out prior to the publication in Official Journal of the European Union of the final decision under appeal;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings acquired shareholdings in companies established in the United States and in Peru during the tax years 2008 to 2010 and amortized the financial goodwill generated in the acquisition of majority shareholdings in those companies, pursuant to Article 12(5) of TRLIS.

On 12 January 2011 the Commission adopted the contested decision C(2010) 9566 final on the tax amortization of financial goodwill for foreign shareholding acquisitions No C 45/2007 (ex NN 51/2007, ex CP 9/2007). As a consequence of that decision, the Administración Tributaria (Spanish tax authority) commenced verification procedures with the objective of correcting the amortizations applied by the applicant.

In support of its action the applicant relies on two pleas in law:

1. First plea, based on the failure to satisfy the requirements necessary to consider the measure as State aid. — The applicant maintains in this regard that the main reason why the tax system at issue cannot be considered to be State aid is the fact that the measure concerned is not selective. The Commission commits an error when it holds that there is de facto selectivity because the measure favours national acquisitions and because a shareholding of at least 5 % is required. The applicant claims that the Commission arrives at that conclusion by dispensing with any analysis of the types of businesses and business sectors in which the companies which have applied that system intervene.

2. Second plea, based on the failure to state reasons for the decision.

The applicant considers that the grounds on which the Commission bases its view that there are no explicit legal obstacles in the acquisition of companies in the United States and in Peru are manifestly insufficient.
4.

Fourth plea in law, relating to the existence of aid for the purpose of Article 107(1) TFEU. Arguments in support of the plea: through the preferential tariff granted to the applicant, the Italian State intervened in order to eliminate an unjustified situation which placed certain parties at a disadvantage and to reduce the excessive costs relating to electricity consumption due to the poor connections between the islands network and the national mainland network. Consequently, the requirements that the measure should confer an economic advantage and be selective were not satisfied. Moreover, the intervention of the Cassa Conguaglio [Equalisation Fund for the Electricity Sector] was purely incidental and the measure in question cannot therefore be classified as constituting State resources. Lastly, that measure could not have had any effect on trade between Member States because, in the zinc market, there are no intra-Community trade flows.
EN Official Journal of the European Union C 238/19

Action brought on 23 May 2011 — Bopp v OHIM (Octagon with green sides)

(Case T-263/11)

2011/C 238/34

Language of the case: German

Parties

Applicant: Carsten Bopp (Glashütten, Germany) (represented by C. Russ, 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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2011 in Case R 605/2010-4.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark consisting of an octagon with green sides — application No 8 248 965.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for is distinctive on account of the identifiable, spatial representation.
EN Official Journal of the European Union C 238/27

Action brought on 31 May 2011 — Ghost Brand v OHIM — Procter & Gamble International Operations (GHOST)

(Case T-298/11)

2011/C 238/47

Language in which the application was lodged: English

Parties

Applicant: Ghost Brand Ltd (London, United Kingdom) (represented by: N. Caddick, QC)

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

The Appellant to the proceedings before the Board of Appeal: Procter & Gamble International Operations SA (Geneva, Switzerland)

Form of order sought

— Order that transfer of ownership in respect of Community Trade Mark Registration No 000282350 ‘GHOST’ to Procter & Gamble International Operations S.A. should be recorded and published only in respect of ‘cosmetics’, and that ownership of the registration in relation to all goods in class 25, and ‘soaps, perfumery, essential oils, hair lotions’ in class 3 should remain in the name of Ghost Brand Limited.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for transfer of ownership has been made: The word mark ‘GHOST’, for goods in class 3 (‘soaps, perfumery, essential oils, cosmetics, hair lotions’) — Community trade mark registration No 282350

Proprietor of the Community trade mark: The applicant

Party applying for the transfer of ownership of the Community trade mark: The Appellant to the proceedings before the Board of Appeal

Decision of the Department for Designs and Register: Rejected the application for a partial transfer of ownership

Decision of the Board of Appeal: Annulled the contested decision and decided that the Department for Designs and Register shall record and publish the transfer of ownership

Pleas in law: The applicant advances three pleas in law, mainly that: (i) the Second Board of Appeal erred in not notifying the applicant of the appeal proceedings, or the appeal decision; (ii) the Second Board of Appeal was not provided with all of the necessary information, and the appellant’s appeal was based on deception; and, (iii) the appellant acted in bad faith in appealing the decision of the Office for Harmonisation in the Internal Market.
1.

In the grounds of its application the applicant alleges, as its first plea in law, the infringement of the law of the European Union by the Commission. It states that the financial reduction applied by the Commission because of the failure to observe the period of three months laid down is unlawful given that, in its view and contrary to the contention of the Commission, the period of three months for making the Sapard payment laid down by the law of the European Union — specifically, by Article 9(6) of Commission Regulation No 2222/2000/EC (1) and by Article 8(6) of Annex A to the multiannual financial agreement signed by the European Community and the Republic of Hungary on 15 June 2001 — begins to run when the authority has all the supporting documents necessary to make the payments. Consequently, in the event that, for certain reasons, additional supporting documents are necessary, the period does not begin to run until the last of the additional documents has been sent. In addition, according to the applicant, the Commission also breached the principles of cooperation in good faith and protection of legitimate expectations in applying a financial reduction in a situation in which the Hungarian authorities had good reason to believe that their payment procedure complied with European Union law. As its second plea in law the applicant alleges that the Commission made a manifest error of assessment in adopting the contested decision since it did not take into account exceptional circumstances and sound reasons which would have justified not applying the financial reduction or its limitation as the case may be. It pointed to the ‘educational’ nature of the Sapard programme and the fact that the prime objective of the Hungarian authorities was to protect the economic interests of the EU, as specific examples of such circumstances. The applicant pointed out that the Commission did not suffer any loss as a result of the failure to comply with the time-limit. According to the third plea, which alleges a failure to state reasons, the grounds for the contested decision do not give an adequate account of the reasons why the Commission decided to apply the reduction, nor of how its extent in practice should be quantified, nor, in particular, as regards why the Commission departed from the opinion drawn up in that regard by the conciliation body, according to which there are exceptional circumstances in the present case which should be taken into account for the purposes of applying the reduction.
EN Official Journal of the European Union C 238/32

Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

(Case T-314/11)

2011/C 238/55

Language in which the application was lodged: English

Parties

Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

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 1 April 2011 in case R 354/2009-2; and

— Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘FORTRESS’, claiming the colours red, black and white, for services in classes 35, 36 and 42 — Community trade mark registration No 3398451

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009. It was also based on United Kingdom non registered trade marks ‘FORTRESS’, ‘FORTRESS INVESTMENTS’, and ‘FORTRESS INVESTMENT GROUP’, used in the course of trade.

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

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal failed properly to analyse the question of goodwill under the UK law of passing off and failed properly to assess the risk of misrepresentation and consequent damage.
EN Official Journal of the European Union C 269/53

Action brought on 6 July 2011 — Bial — Portela & Ca v OHIM — Isdin (ZEBEXIR)

(Case T-366/11)

2011/C 269/118

Language in which the application was lodged: English

Parties

Applicant: Bial — Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. M. Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Isdin, SA (Barcelona, Spain)

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 6 April 2011 in case R 1212/2009-1;

— Order the defendant to refuse the grant of the registration of Community trade mark No 6809008 ‘ZEBEXIR’; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

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 ‘ZEBEXIR’, for goods in classes 3 and 5 — Community trade mark application No 6809008

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

Mark or sign cited in opposition: Community trade mark registration No 3424223 of the word mark ‘ZEBINIX’, for goods and services in classes 3, 5 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the trademarks in question were not confusingly similar.
EN Official Journal of the European Union C 252/43

Action brought on 7 July 2011 — Gollnisch v Parliament

(Case T-347/11)

2011/C 252/93

Language of the case: French

Parties

Applicant: Bruno Gollnisch (Limonest, France) (represented by: G. Dubois, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

— annul the decision of European Parliament of 10 May 2011 to waive the applicant’s parliamentary immunity and to adopt Report No A7-0154/2011;

— award Mr GOLLNISCH the sum of EUR 8 000 in compensation for non-material damage;

— award Mr GOLLNISCH the sum of EUR 4 000 by way of costs incurred for legal advice and the preparation of this action.

Pleas in law and main arguments

The applicant seeks, first, the annulment of the decision of the European Parliament of 10 May 2011 to adopt the report of the Committee on Legal Affairs (A7-0154/2011) and to reject the request for the defence of immunity and privileges of Bruno Gollnisch (2010/2097(IMM)) and, second, compensation for the non-material damage that it allegedly suffered in consequence of the adoption of the contested decision.

In support of the action, the applicant relies on seven pleas in law:

1. First plea, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Union of 8 April 1965.

2. Second plea, concerning the necessary application in the present case of Article 9 of the Protocol.

3. Third plea, alleging failure to follow the precedents set by previous decisions of the Committee on Legal Affairs of the European Parliament.

4. Fourth plea, alleging failure to respect the legal certainty of European Union law and breach of legitimate expectations.

5. Fifth plea, alleging breach of the independence of a Member.

6. Sixth plea, alleging infringement of the provisions of the rules of the European Parliament relating to proceedings which might lead to the disqualification of a Member.
2.

Second plea in law, alleging infringement of the principle of sound administration resulting from the Commission’s failure, in 2003, to compensate for the harmful effects of its 1997 decision. The Commission found that its decision of 19 November 1997 was unlawful at the latest on 8 May 2003, when it addressed a letter to the French authorities, stating that the detailed rules for financing the radio broadcasting aid scheme, as approved most recently by the decision of 10 November 1997, were contrary to the Treaty rules. However, the Commission did not take any measures to remedy the unlawful situation thus established. It is on that basis that the applicants consider that the Commission’s failure to compensate for the harmful effects of the unlawful decision of 1997 infringes the principle of sound administration, which is a general principle of European Union law, and is therefore such as to entail liability on the part of the European Union.