ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 195/25

Action brought on 10 May 2010 — Monster Cable Products v OHIM — Live Nation (Music) UK Ltd (MONSTER ROCK)

(Case T-216/10)

2010/C 195/39

Language in which the application was lodged: English

Parties

Applicant: Monster Cable Products, Inc. (Brisbane, USA) (represented by: O. Günzel and W. von der Osten-Sacken, lawyers)

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

Other party to the proceedings before the Board of Appeal: Live Nation (Music) UK Ltd (London, United Kingdom)

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 24 February 2010 in case R 216/2009-1, as far as the appeal was dismissed;

— Reject the opposition No B 754335 against Community trademark application No 3333804 ‘MONSTER ROCK’ in its entirety; and

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

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MONSTER ROCK’, for goods in class 9

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: United Kingdom trade mark registration No 1313176 of the word mark ‘MONSTERS OF ROCK’, for goods in class 16; United Kingdom trade mark registration No 1313177 of the word mark ‘MONSTERS OF ROCK’, for goods in class 25; United Kingdom trade mark registration No 1313178 of the word mark ‘MONSTERS OF ROCK’, for goods in class 26; United Kingdom trade mark registration No 2299141 of the word mark ‘MONSTERS OF ROCK’, for goods and services in classes 9, 16, 25, 41 and 43; trade mark ‘MONSTERS OF ROCK’, well-known (in the sense of Article 6 bis of the Paris Convention) in the old 15 Member States; unregistered trade mark ‘MONSTERS OF ROCK’, used in the course of trade in the old 15 Member States; trade name ‘MONSTERS OF ROCK’, used in the course of trade in the old 15 Member States

Decision of the Opposition Division: Upheld the opposition for all the contested goods and rejected the application 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 207/2009, as the Board of Appeal: (i) wrongly assessed the identity/similarity of the goods, (ii) didn’t take into account the differences between the trademarks, in particular their conceptual differences, and (iii) failed to determine the scope of protection of the earlier sign.
EN Official Journal of the European Union C 221/54

Action brought on 8 June 2010 — Conceria Kara v OHIM (KARA)

(Case T-270/10)

()

2010/C 221/87

Language in which the application was lodged: Italian

Parties

Applicant: Conceria Kara Srl (Trezzano sul Naviglio, Italy) (represented by: P. Picciolini, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Dima — Gida Tekstil Deri Insaat Maden Turizm Orman Urünleri Sanayi Ve Ticaret Ltd Sti

Form of order sought

— Annulment of the decision of the Second Board of Appeal of 29 March 2010 on the appeal against the decision of the Opposition Division in Case B 1171453 in proceedings brought by Conceria Kara rejecting Community trade mark application No 5346457.

Pleas in law and main arguments

Applicant for a Community trade mark: DIMA — TEKSTIL DERI INSAAT MADEM TURIZM ORMAN URÜNLERE SANAYI VE TICARET LTD. STI.

Community trade mark concerned: Word mark ‘KARRA’ for goods and services in Classes 3, 9, 18, 20, 24, 25 and 35.

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

Mark or sign cited in opposition: Italian figurative marks ‘KARA’ (No 765 532, for goods in Class 35, and No 761 972 for goods and services in Classes 18 and 25), Community figurative trade mark No 887 810 (‘KARA’) for goods in, inter alia, Classes 18 and 25, and the business name of the Italian company ‘CONCERIA KARA S.R.L.’, the right to the use of which is claimed in relation to the same goods and services for earlier marks.

Decision of the Opposition Division: The opposition was upheld in part.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Failure to state reasons and misinterpretation and misapplication of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 209/50

Action brought on 31 May 2010 — KNUT IP Management v OHIM — Zoologischer Garten Berlin (KNUT — DER EISBÄR)

(Case T-250/10)

()

2010/C 209/75

Language in which the application was lodged: German

Parties

Applicant: KNUT IP Management Ltd. (London, England) (represented by: C. Jaeckel, 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: Zoologischer Garten Berlin AG (Berlin, 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 17 March 2010 in Case R 650/2009-1;

— order the defendant to pay the costs including those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘KNUT — DER EISBÄR’ for goods and services in Classes 9, 16, 25, 28 and 41.

Proprietor of the mark or sign cited in the opposition proceedings: Zoologischer Garten Berlin AG.

Mark or sign cited in opposition: German word mark ‘KNUD’ for goods and services in Classes 9, 16 and 28; German word mark ‘Knut — der Eisbär’ for goods and services in Classes 16, 25, 28 and 41; German word mark ‘KNUT’ for goods and services in Classes 3, 4, 5, 8, 9, 11, 12, 14, 16, 18, 20, 21, 24, 25, 28, 29, 30, 32, 33, 35, 39, 41, 42 and 43; German word mark ‘KNUT’ for goods and services in Classes 16, 18, 21, 25, 28, 35, 41 and 42.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal allowed and opposition upheld in full.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) because there is no likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 234/47

Action brought on 25 June 2010 — Milux v OHMI (APPETITECONTROL)

(Case T-281/10)

()

2010/C 234/83

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, 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 29 April 2010 in case R 1433/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘APPETITECONTROL’ for goods and services in classes 9, 10 and 44

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.
EN Official Journal of the European Union C 234/40

Action brought on 10 June 2010 — France Télécom v Commission

(Case T-258/10)

()

2010/C 234/74

Language of the case: French

Parties

Applicant: France Télécom (Paris, France) (represented by: M. van der Woude and D. Gillet, lawyers)

Defendant: European Commission

Form of order sought

— Declare the present action admissible;

— Annul the decision; and

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

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 7426 final of 30 September 2009, (1) declaring that the compensation for public service charges in the amount of EUR 59 million, granted by the French authorities to a group of undertakings for the establishment and operation of a very high-speed broadband electronic communications network (project THD 92) in the French Hauts-de-Seine department, does not constitute State aid.

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

— an infringement of the notion of State aid for the purposes of Article 107(1) TFEU, since the Commission committed an error of law in applying the four ‘Altmark’ criteria in the present case, in so far as: — Project THD92 does not pursue an objective of general economic interest, but a competitive one on the part of Hauts-de-Seine department as an international business centre; — Project THD92 is taking place in a ‘black area’ and does not respond to a market failure; — the compensation in the amount of EUR 59 million is disproportionate and was granted on the basis of previously unknown selection criteria; and

— an infringement of Article 108(2) TFEU since the Commission infringed the applicant's procedural rights by not initiating the formal investigation procedure, thus depriving the applicant of the possibility of voicing its point of view as an interested third party.

(1) State Aid N 331/2008 — France.
EN Official Journal of the European Union C 260/16

Action brought on 6 July 2010 — Seven Towns Ltd v OHIM

(Case T-293/10)

()

2010/C 260/22

Language of the case: English

Parties

Applicant: Seven Towns Ltd (London, United Kingdom) (represented by: E. Schäfer, lawyer)

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

Form of order sought

— Partially 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 2010 in case R 1475/2009-1, as far as Community trade mark application No 5650817 was rejected;

— Order the defendant to pay the costs of the proceedings including applicant’s costs of legal representation.

Pleas in law and main arguments

Community trade mark concerned: A colour per se mark described as ‘six surfaces being geometrically arranged in three pairs of parallel surfaces, with each pair being arranged perpendicularly to the other two pairs characterised by (i) any two adjacent surfaces having different colours and (ii) each surface having a grid structure formed by black borders dividing the surface into nine equal segments’. The indicated colours were red (PMS 200C); green (PMS 347C); blue (PMS 293C); orange (PMS 021C); yellow (PMS 012C); white and black for goods in class 28 — Community trade mark application No 5650817

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

Decision of the Board of Appeal: Annulled the contested decision and rejected Community trade mark application No 5650817

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision violates the principles of due process by infringing Articles 80(1) and 80(2) of Council Regulation (EC) No 207/2009 in conjunction with Rule 53(a) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erroneously examined the substantive issue.

By its second plea, the applicant considers that the contested decision violates its right of fair proceedings by infringing Article 64(1) of Council Regulation (EC) No 207/2009, as the Board of Appeal based its decision on a completely new argument without the Applicant having been invited to submit its observations.
EN Official Journal of the European Union C 260/25

Action brought on 4 August 2010 — SA.PAR. v OHIM — Salini Costruttori (GRUPPO SALINI)

(Case T-321/10)

()

2010/C 260/34

Language in which the application was lodged: Italian

Parties

Applicant: SA.PAR. Srl (Rome, Italy) (represented by: A. Masetti Zannini de Concina, M. Bussoletti and G. Petrocchi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Salini Costruttori SpA (Rome, Italy)

Form of order sought

— declare the present action admissible;

— annul the decision of the First Board of Appeal of OHIM of 21 April 2010 on the grounds of breach of Articles 52(1)(b) and 53(1)(a) of Regulation (EC) No 207/2009 and of a deficient statement of reasons;

— order OHIM to pay the costs of the present proceedings and of those before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘GRUPPO SALINI’ (registration application No 3 832 161) for services in Classes 36, 37 and 42.

Proprietor of the Community trade mark: The applicant.

Party requesting the declaration of invalidity of the Community trade mark: SALINI COSTRUTTORI SpA.

Trade mark right of the party requesting the declaration of invalidity: Well-known trade mark in Italy, de facto trade mark, domain name and company name of ‘SALINI’ for services in Classes 36, 37 and 42.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of nullity of the Community trade mark.

Pleas in law: Breach of Article 53(1)(a), in conjunction with Article 8(1)(b) and 8(2)(c), of Regulation No 207/2009 on the Community trade mark, breach of Article 52(1)(b) of that regulation, and deficient statement of reasons.
Official Journal of the European Union

Action brought on 23 August 2010 — Nike International/OHMI — Deichmann (VICTORY RED)

(Case T-356/10)

()

(2010/C 288/103)

Language in which the application was lodged: English

Parties

Applicant: Nike International Ltd (Oregon, U.S.A.) (represented by: M. De Justo Bailey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Deichmann SE (Essen, Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2010 in case R 1309/2009-2;

— Order the defendant to pay the costs of the proceedings, and;

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VICTORY RED’, for goods in classes 18 and 28

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: German trade mark registration No 30318528 of the word mark ‘Victory’, for goods in classes 18, 25 and 28; International trade mark registration No 819143 of the word mark ‘Victory’, for goods in classes 18, 25 and 28

Decision of the Opposition Division: Upheld the opposition for all of the contested goods and rejected the application 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 207/2009, as the Board of Appeal made an incorrect assessment of the likelihood of confusion, in particular of the similarity of the signs.
EN Official Journal of the European Union C 274/29

Action brought on 10/08/2010 — Abercrombie & Fitch Europe/OHMI — Gilli (GILLY HICKS)

(Case T-336/10)

()

2010/C 274/44

Language in which the application was lodged: English

Parties

Applicant: Abercrombie & Fitch Europe SA (Mendrisio, Switzerland) (represented by: S. Malynicz, Barrister, D. Stone and L. Ritchie, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Gilli Srl (Milano, Italy)

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 20 May 2010 in case R 832/2008-1, and;

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “GILLY HICKS”, for goods and services in classes 3, 14, 25 and 35 — Community trade mark application No 5194543

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: Community trade mark registration No 3566007 of the figurative mark “GILLI”, for goods in classes 3, 9, 14 and 25

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Annulled the contested decision partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal did not carry out a correct visual, aural or conceptual comparison of the marks and therefore erred in relation to the likelihood of confusion.
Official Journal of the European Union

Action brought on 10 August 2010 — Fraas v OHIM (Black, grey, beige and dark red coloured checked pattern)

(Case T-329/10)

()

(2010/C 288/86)

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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 7 June 2010 in Case R 191/2010-4;

— Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a black, grey, beige and dark red coloured checked pattern, for goods in Classes 18, 24 and 25.

Decision of the Examiner: Registration was refused.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 301/31

Action brought on 10 August 2010 — Viaguara v OHIM — Pfizer (VIAGUARA)

(Case T-332/10)

()

2010/C 301/54

Language in which the application was lodged: Polish

Parties

Applicant: Viaguara S.A. (Warsaw, Poland) (represented by: R. Skubisz, legal adviser)

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

Other party to the proceedings before the Board of Appeal of OHIM: Pfizer Inc.

Form of order sought

— annul in its entirety the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2010 in Case R 964/2009-1;

— order the defendant and Pfizer Inc. to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Viaguara.

Community trade mark concerned: Word mark ‘VIAGUARA’ for goods in Classes 32 and 33 — application No 4630562.

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

Mark or sign cited in opposition: Community work mark ‘VIAGRA’ for goods in Class 5.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Decision of the Opposition Division annulled and trade mark application rejected in its entirety.

Pleas in law: Infringement of Article 8(5) of Regulation No 207/2009 (1) on account of an incorrect methodology for assessment of the connection between the marks and flawed findings in relation to the risk of exploitation of the repute and image of the trade mark cited in opposition.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 301/61

Action brought on 20 September 2010 — Cooperativa Vitivinícola Arousana v OHIM — Constantina Sotelo Ares (ROSALIA DE CASTRO)

(Case T-421/10)

()

2010/C 301/98

Language in which the application was lodged: Spanish

Parties

Applicant: Cooperativa Vitivinícola Arousana, S. Coop. Galega (Meaño, Spain) (represented by: E Sánchez-Quiñones González, 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: Doña Constantina Sotelo Ares (Cambados, Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 19 July 2010 in Case R 1804/2008-4;

— order that trade mark 5635867 ROSALIA DE CASTRO be granted in respect of Classes 32, 33 and 35;

— order the defendant to pay the costs, annulling the costs which the applicant was ordered to pay in the appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Cooperativa Vitivínicola Arousana, S. Coop. Galega.

Community trade mark concerned: Word mark ‘ROSALIA DE CASTRO’ for goods and services in Classes 32, 33 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Doña Constantina Sotelo Ares.

Mark or sign cited in opposition: Spanish word mark ‘ROSALIA’ for goods and services in Class 33.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal allowed and opposition upheld.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue.

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