ddrg/super_eurlex huggingface dataset:
1.

First plea in law: No State resources within the meaning of Article 107(1) TFEU By their first plea, the applicants claim that the Commission wrongly assumes a use of ‘State resources’ within the meaning of Article 107(1) TFEU in the context of the financing flows provided for under the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG). — An advantage without the use of State resources is not sufficient to operate as a legal basis fulfilling the definition of aid. The required use of State resources is lacking in relation to the EEG-surcharge because that surcharge is paid solely by private parties and the resources raised cannot be attributed to the State in the absence of a permanent control and the associated possibility of access. — State control over the EEG-surcharge itself is ruled out simply because the amount of the surcharge is not determined by State authorities, but by the price of electricity on the electricity exchange and the amount of renewable electricity fed into it. In addition, there are no opportunities for the State to influence the relationship between the energy supplier and the ultimate consumer at the fifth stage of the EEG compensation mechanism. The passing-on of the costs takes place here in a relationship governed purely by private law. — Consequently, the required State control is also lacking in relation to the so-called special compensation regime of the EEG due to the essential link between the qualification of the EEG-surcharge and the surcharge reduction for energy-intensive users. It cannot be said that control exists by virtue of the fact that the decision on the control is made by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control) because that office is assigned a purely reconstructive or declaratory task. — In addition, by means of the surcharge reduction for energy-intensive users, the State did not waive resources which it normally could have expected to obtain. No reduction of the total revenue from the EEG-surcharge is associated with the surcharge reduction because of the particular construction of the EEG compensation mechanism. On the contrary, the surcharge reductions for energy-intensive users were compensated for by higher surcharges imposed on each kilowatt-hour of electricity supplied to non-privileged end-consumers.
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refer the case back to the Civil Service Tribunal so that it may examine the third plea in law raised in the application initiating proceedings and adjudicate on the two other pleas in accordance with the judgment on appeal;
EN Official Journal of the European Union C 235/21

Action brought on 17 April 2014 — Yoworld v OHIM — Nestlé (yogorino)

(Case T-246/14)

2014/C 235/29

Language in which the application was lodged: English

Parties

Applicant: Yoworld SA (Luxembourg, Luxembourg) (represented by: A. Tornato and D. Hazan, lawyers)

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

Other party to the proceedings before the Board of Appeal: Société des produits Nestlé SA (Vevey, Switzerland)

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 20 December 2013 given in Case R 115/2013-2;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark containing the verbal element ‘yogorino’ for goods and services in Classes 5, 35 and 43 — Community trade mark application No 9 4 36 536

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: Earlier Community trade mark No 7 2 56 829

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision in part

Pleas in law: Infringement of Article 8(1)(b) CTMR
EN Official Journal of the European Union C 245/24

Action brought on 8 May 2014 — Rezon OOD v OHIM — mobile.international GmbH (mobile.de proMotor)

(Case T-337/14)

2014/C 245/32

Language in which the application was lodged: Bulgarian

Parties

Applicant: Rezon OOD (Sofia, Bulgaria) (represented by: P. Kanchev and T. Ignatova, lawyers)

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

Other party to the proceedings before the Board of Appeal: mobile.international GmbH (Dreilinden, Germany)

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 19 February 2014 in Case R 950/2013-1;

— grant the applications made to the divisions and boards of appeal of OHIM;

— grant in its entirety the application for a declaration of invalidity of the Community trade mark mobile.international GmbH;

— order reimbursement of the applicant’s costs;

— order that experts be appointed to produce a written report on the evidential issues raised in the action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘mobile.de proMotor’ for services in classes 35, 38, 41 and 42 — Community trade mark registration No 4 896 643.

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, Rezon OOD.

Grounds for the application for a declaration of invalidity: Relative ground for invalidity under Article 53(1) in conjunction with Article 8(1)(b) and (c) of Regulation No 207/2009.

Decision of the Cancellation Division: Application dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 78(1)(e) of Regulation No 207/2009, in conjunction with Article 76 thereof and with Rule 22(3) of Regulation No 2868/95; infringement of Article 53(1)(a) of Regulation No 207/2009; conflict, in the light of EU enlargement, between the Community trade mark registered subsequently and an earlier national trade mark.
EN Official Journal of the European Union C 245/30

Action brought on 2 June 2014 — Marcuccio v Court of Justice

(Case T-409/14)

2014/C 245/42

Language of the case: Italian

Parties

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

Defendant: Court of Justice of the European Union

Form of order sought

— Annul the decision, whatever the form in which it was adopted, by which the defendant rejected the request of 22 January 2014 submitted by the applicant to Court of Justice.

— Order the defendant to pay the applicant the sum of EUR 25 000, or such other greater or lesser sum as the General Court may deem to be fair and equitable, by way of compensation for the harm suffered by the applicant as a result of the unreasonable duration of the legal proceedings brought by the applicant, or by way of an indemnity on account of the unreasonable duration of the proceedings in question.

— Order the defendant to pay all the costs, fees and other expenses incurred in these proceedings.

Pleas in law and main arguments

The subject-matter of the present action is the harm which the applicant claims that he suffered as a result of what he claims to be the excessive duration of the proceedings in Case T-236/02 Marcuccio v Commission.

In support of the action, the applicant relies on 2 pleas in law.

1. First plea in law, alleging absolute failure to state reasons, including on the ground of absolute failure to carry out a preliminary investigation and breach of the duty of sound administration.
1.

First plea in law, alleging that the Council of the European Union (‘the Council’) lacked a proper legal basis for the Decision and the Regulation. Arguments in support of the plea include (a) that the conditions for the Council relying on Article 29 TEU were not fulfilled by the Decision. Amongst other things: (i) The Council’s expressly invoked objectives (consolidating the rule of law and respect for human rights in Ukraine) could not, as a matter of fact, be sustained by the Council, which then stated grounds for designation (linked to alleged embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine, which the Applicant denies) which were not consistent with, and failed to comply with, the stated or any relevant objectives of Article 21 TEU. (ii) The Decision and the Regulation are contrary to other relevant objectives identified in Article 21 in that they failed to ‘consolidate and support democracy ... [and] the principles of international law’, in particular by wrongly asserting, and acting on the basis that, the legitimate democratically elected President of Ukraine, President Yanukovich, was a ‘former President’, contrary to the law of Ukraine and International law, and by providing support for the so-called ‘interim President and government’, who have not been lawfully and democratically elected, and who took what power they have from time to time by illegal force, contrary to the rule of law, democratic principles and international law. (b) The conditions for relying on Article 215 TFEU were not fulfilled because there was no valid decision under Chapter 2 of Title V TEU. (c) There was no sufficient link for Article 215 TFEU to be relied on against the applicant.
EN Official Journal of the European Union C 253/56

Action brought on 12 June 2014 — Almoauto v Commission

(Case T-427/14)

2014/C 253/75

Language of the case: Spanish

Parties

Applicant: Almoauto, SA (Alcorcón, Madrid, Spain) (represented by: J. García Muñoz, J. Jiménez-Blanco Carrillo de Albornoz and J. Corral García, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the contested decision; and

— order the Commission to pay all the costs incurred in the proceedings.

Pleas in law and main arguments

The pleas in law and main arguments are those raised in Case T-392/14 Gutser v Commission.
EN Official Journal of the European Union C 253/43

Action brought on 23 May 2014 — Experience Hendrix v OHIM — JH Licence (Jimi Hendrix)

(Case T-357/14)

2014/C 253/57

Language in which the application was lodged: English

Parties

Applicant: Experience Hendrix LLC (Tukwila, USA) (represented by: M. Vanhegan, Barrister, and P. Gardiner, Solicitor)

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

Other party to the proceedings before the Board of Appeal: JH Licence GmbH (Pommelsbrunn, Germany)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 March 2014 in Case R 782/2012-4;

— declare that the contested community trade mark is invalid;

— order that the community trade mark proprietor pays the applicant its costs incurred before the Cancellation Division;

— order that the defendant pays the applicant its costs incurred before the Board of Appeal and the General Court

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘Jimi Hendrix’ for goods and services in Classes 9 and 15 — Community trade mark registration No 4 6 26 685

Proprietor of the Community trade mark: JH Licence GmbH

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

Grounds for the application for a declaration of invalidity: Violation of Articles 52(1)(b) and 53(2)(a) of Regulation No 207/2009

Decision of the Cancellation Division: The community trade mark was declared invalid

Decision of the Board of Appeal: The decision of the Cancellation Division was annulled and the request for declaration of invalidity rejected

Pleas in law:

— Violation of Article 52(1)(b) of Regulation No 207/2009;

— Violation of Article 53(2)(a) and Article 78 of Regulation No 207/2009;
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in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;
1.

First ground of appeal, alleging infringement of the rights of the defence, in so far as the Civil Service Tribunal (CST) failed to draw the attention of the parties to the question of the admissibility of the application until just before the final act of long proceedings, making it impossible for the applicant to prepare adequate arguments.
EN Official Journal of the European Union C 282/38

Action brought on 17 April 2014 — The Smiley Company v OHIM (Shape of a face in the form of a star)

(Case T-244/14)

2014/C 282/50

Language of the case: English

Parties

Applicant: The Smiley Company SPRL (Brussels, Belgium) (represented by: A. Freitag, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 January 2014 given in Case R 838/2013-1;

— Order the defendant to pay the costs of proceedings.

Pleas in law and main arguments

Community trade mark concerned: Tri-dimensional mark representing the shape of a face in the form of a star for goods in classes 29 and 30 — Community trade mark application No 1 1 1 68 937

Decision of the Examiner: Found the mark applied for not eligible for registration pursuant to Article 7(1)(b) of the Regulation No 207/2009

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of the Regulation No 207/2009
EN Official Journal of the European Union C 261/27

Action brought on 15 May 2014 — Société des produits Nestlé/OHIM (NOURISHING PERSONAL HEALTH)

(Case T-336/14)

2014/C 261/50

Language of the case: English

Parties

Applicant: Société des produits Nestlé SA (Vevey, Switzerland) (represented by: A. Jaeger-Lenz, A. Lambrecht and S. Cobet-Nüse, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 March 2014 in case R 149/2013-4;

— Order the OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: International registration of the word mark ‘NOURISHING PERSONAL HEALTH’ for goods and services in Classes 5, 10, 41, 42 and 44 — Community trade mark application no 01 102 735

Decision of the Examiner: The application was rejected

Decision of the Board of Appeal: The appeal was rejected

Pleas in law:

— Infringement of Article 76(1) of Regulation No 207/2009;

— Infringement of Article 75 of Regulation No 207/2009;
4.

Fourth plea in law, alleging infringement of the right to the integrity of the person and to respect for private and family life, and breach of the principle of non-discrimination — Here the applicant claims that the measure adopted is an act that is detrimental to the right to the integrity of the person, affecting the applicant’s family and private sphere. — According to the applicant, he has suffered damage to his good reputation and a loss of dignity owing to the fact that he was de facto accused by the Council, in the contested decision and in the implementing decision, of transferring Ukrainian State funds abroad and of human rights infringements, although not one of these offences has ever been proved against the applicant and, at the time when he was included on the list, the applicant was not even under investigation for the commission of such offences. — In addition the applicant claims that the Council’s measure is discriminatory because he was included on the list without any real reason, and, vice versa, the list does not include persons who should be included on it because of their activities against the interests of Ukraine.
EN Official Journal of the European Union C 303/51

Action brought on 13 July 2014 — Compagnie générale des établissements Michelin v OHIM — Continental Reifen Deutschland (XKING)

(Case T-525/14)

2014/C 303/60

Language in which the application was lodged: English

Parties

Applicant: Compagnie générale des établissements Michelin (Clermont-Ferrand, France) (represented by: L. Carlini, lawyer)

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

Other party to the proceedings before the Board of Appeal: Continental Reifen Deutschland GmbH (Hannover, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 May 2014 given in Case R 1522/2013-4;

— Order the defendant and the other party to the proceedings, should it intervene, 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 figurative mark containing the verbal elements ‘XKING’ for goods in Class 12 — Community trade mark application No 1 0 6 44 821

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

Mark or sign cited in opposition: Community trademarks Nos 5 2 93 782 and 5 5 60 396, national marks an international registrations

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

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition

Pleas in law: Infringement of Article 8(1)(b) and (5) CTMR
EN Official Journal of the European Union C 292/55

Action brought on 6 July 2014 — Gas Natural v Commission

(Case T-508/14)

2014/C 292/67

Language of the case: Spanish

Parties

Applicant: Gas Natural SDG, SA (Barcelona, Spain) (represented by: F. Seijo Pérez, R. García Gómez de Zamora and M. Troncoso Ferrer, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul the contested decision;

— annul the contested decision in so far as it orders recovery of the aid; and

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant contests Commission Decision of 17 July 2013 on the tax regime applicable to certain finance lease agreements, also known as the Spanish Tax Lease System (State Aid SA.21233 C/2011 (ex NN/2011, ex CP 137/2006))

The pleas in law and main arguments are similar to those raised in Case T-401/14 Duro Felguera v Commission, Case T-700/13 Bankia v Commission and Case T-500/14 Derivados del Flúor v Commission.

The applicant alleges, in particular, infringement of Articles 107 TFEU and 108 TFEU, in that the Commission failed to prove the selective nature of the alleged aid and its effect on trade between Member States; breach of Article 107(1) TFEU and the duty to state reasons, in that the Commission identified the Economic Interest Groupings and their investors as beneficiaries of the alleged aid; infringement of Articles 107 TFEU and 108 TFEU and of the principle that powers must not be misused, in that the contested decision makes a determination as to the validity of clauses in private contracts; and breach of the principle of legal certainty, the principle of the protection of legitimate expectations and the principle of equal treatment; and infringement of Article 14 of Regulation (EC) No 659/1999.
EN Official Journal of the European Union C 303/53

Action brought on 14 July 2014 — adp Gauselmann v OHIM (Multi Win)

(Case T-529/14)

2014/C 303/63

Language of the case: German

Parties

Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by P. Koch Moreno, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2014 in Case R 1326/2013-1;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Multi Win’ for goods and services in Classes 9, 28 and 41 — Community trade mark application No 1 1 2 06 364

Decision of the Examiner: Refused the application

Decision of the Board of Appeal: Rejected the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No. 207/2009
EN Official Journal of the European Union C 329/18

Action brought on 2 June 2014 — salesforce.com v OHIM (MARKETINGCLOUD)

(Case T-389/14)

2014/C 329/25

Language of the case: English

Parties

Applicant: salesforce.com, Inc. (San Francisco, United States) (represented by: A. Nordemann, lawyer)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 March 2014 given in Case R 1854/2013-1;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘MARKETINGCLOUD’ for services in Class 42 — Community trade mark application No 1 0 9 79 441

Decision of the Examiner: Found the trade mark not eligible for registration

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) CTMR.
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In that regard, it is argued that (i) the customs agent was unaware of the manufacturing process of the imported product, which was the decisive factor in requiring the payment of the customs duties, (ii) the importer’s operations were complex and were concealed from the customs agent, (iii) the Spanish customs authorities did not inform the latter of their suspicions concerning the importer’s conduct, nor did they adopt any form of precautionary measure, (iv) the EUR-1 certificates by which the imports were covered were approved on two occasions by the Andorran authorities and (v) even the first analyses of the Spanish customs authorities confirmed that the products were entitled to preferential treatment.