ddrg/super_eurlex huggingface dataset:
1.

First plea in law, alleging infringement of Article 107(1) TFEU: the provision enabling the fiscal carry forward of losses is not a selective measure — The applicant takes the view that the defendant based its decision on an incorrect understanding of German corporation tax law. In particular, it determined the relevant reference system incorrectly. It incorrectly assumed that exception in the Paragraph 8c(1) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax), according to which losses which may on the whole be carried forward are extinguished in particular cases of acquisitions of interests, are part of the reference system. In fact, that provision is a departure from the reference system. The reference system consists of the general possibility of carrying forward losses to subsequent fiscal periods. That follows not least from the (constitutional) principle of net profit or loss. — The provision enabling the fiscal carry forward of losses is in addition, according to the applicant, a general fiscal policy measure which does not confer a selective advantage because it does not favour certain undertakings or the production of certain goods and does not therefore differentiate between economic operators who are in a comparable factual and legal position as regards the aim of the tax system. — The provision enabling the fiscal carry forward of losses is after all also justified on the basis of the general scheme of the German tax system because it helps to give effect to fundamental principles of German corporation tax law (inter alia the principle of transfer of losses between different tax periods), which arise directly from the German Basic Law.
EN Official Journal of the European Union C 32/30

Action brought on 25 November 2011 — Schuhhaus Dielmann v OHIM — Carrera (Carrera panamericana)

(Case T-600/11)

2012/C 32/62

Language in which the application was lodged: German

Parties

Applicant: Schuhhaus Dielmann GmbH & Co. KG (Darmstadt, Germany) (represented by: W. Göpfert)

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

Other party to the proceedings before the Board of Appeal: Carrera SpA (Caldiero, Italy)

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 15 September 2011 in Case R 1989/2010-1;

— 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: word mark ‘Carrera panamericana’ for goods in Classes 18 and 25.

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

Mark or sign cited in opposition: figurative mark containing the word element ‘CARRERA’ for goods in Class 25.

Decision of the Opposition Division: opposition upheld in part.

Decision of the Board of Appeal: appeal dismissed.

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the opposing marks.
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Annul, in so far as those acts refer to the applicant: — Decision 2011/273/CFSP as completed and amended to date, including all decisions cited in Chapter 13 of the application; — Regulation No 442/2011 as completed and amended to date, including all regulations cited in Chapter 14 of the application; — Decision 2011/782/CFSP as completed and amended to date;
1.

First plea in law: compliance with the private creditor principle In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy.
EN Official Journal of the European Union C 109/14

Action brought on 27 December 2011 — Budziewska v OHIM — Puma AG Rudolf Dassler Sport (representation of a puma)

(Case T-666/11)

2012/C 109/32

Language in which the application was lodged: Polish

Parties

Applicant: Danuta Budziewska (Łódź, Poland) (represented by: J. Masłowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Puma AG Rudolf Dassler Sport (Herzogenaurach, Germany)

Form of order sought

— set aside the contested decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 September 2011 in Case No R 1137/2010-3, dismissing the appeal brought by the applicant against the decision annulling her design; and

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

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: design (representation of a puma) registered under No 697016-0001, published on behalf of the applicant in the Community Designs Bulletin of 2 May 2007.

Proprietor of the Community design: the applicant.

Applicant for the declaration of invalidity of the Community design: the other party to the proceedings before the Board of Appeal.

Grounds for the application for a declaration of invalidity: the Community design does not satisfy the definition of a design as set out in Article 3(a) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) and also fails to meet the requirements set out in Articles 4 to 9 of Regulation No 6/2002, in addition to other grounds for invalidity pursuant to Article 25(1)(c), (d), (e), (f) and (g) of that regulation.

Decision of the Cancellation Division: declaration of invalidity of the design.

Decision of the Board of Appeal: appeal dismissed.

Pleas in law: breach of Article 6(1) of Regulation No 6/2002 by reason of the refusal to take account of the individual character of the design notified by the applicant.
EN Official Journal of the European Union C 65/16

Action brought on 27 December 2011 — Spa Monopole v OHIM — Royal Mediterranea (THAI SPA)

(Case T-663/11)

2012/C 65/30

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and E. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: Royal Mediterranea SA (Madrid, Spain)

Form of order sought

The applicant claims that the General 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 20 October 2011 in Case R 1238/2010-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Royal Mediterranea SA

Community trade mark concerned: Word mark ‘THAI SPA’ for goods and services in Classes 16, 41 and 43

Proprietor of the mark or sign cited in the opposition proceedings: Spa Monopole SA/NV.

Mark or sign cited in opposition: Benelux registrations of word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 32 and 42 (now Class 44).

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 in that the Board of Appeal did not accept a similarity between the ‘restaurant services (food)’ designated in Class 43 in the mark applied for and the ‘mineral water and aerated waters and other non-alcoholic drinks; syrup and other preparations to make beverages’ designated in the ‘SPA’ word mark registered in Benelux; infringement of Article 8(5) of Regulation No 207/2009 in that the Fourth Board of Appeal did not accept the existence of a ‘link’ between the ‘SPA’ mark in Class 32 and the ‘THAI SPA’ mark in Class 43; and infringement of the rights of the defence and of Article 75 of Regulation No 207/2009.
EN Official Journal of the European Union C 65/19

Action brought on 10 January 2012 — Kazino Parnithas v Commission

(Case T-14/12)

2012/C 65/37

Language of the case: English

Parties

Applicant: Elliniko Kazino Parnithas AE (Maroussi, Greece) (represented by: F. Carlin, Barrister, N. Niejahr, Q. Azau, F. Spyropoulos, I. Dryllerakis and K. Spyropoulos, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision 2011/716/EU of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ 2011 L 285, p. 25);

— In the alternative, annul the contested decision to the extent it applies to the applicant; or

— Further in the alternative, annul the contested decision in so far as it orders the recovery of amounts from the applicant; and

— Order the defendant to pay its own costs and the applicant’s costs in connection with these proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant violated Article 107(1) TFEU in determining that the measure at stake constituted an aid measure by: — identifying that the applicant benefited from an economic advantage in the form of a ‘fiscal discrimination’ in the amount of Euro 7,20 per Ticket; — finding that the measure involved forgone State resources; — considering that the measure was selective in favour of the applicant; and — concluding that the measure distorted competition and had an effect on trade between Member States.

2. Second plea in law, alleging alleging that the defendant violated Article 296 TFEU by failing to provide adequate reasoning to enable the applicant to understand and this Court to review the reasoning based on which it found that the applicant benefited from a selective advantage, that any such advantage involved forgone State revenues and would be liable to distort competition and affect trade between Member States.

3. Third plea in law, alleging that in so far as the contested decision orders recovery of amounts from the applicant it violates: — Article 14(1), first sentence, of Council Regulation (EC) No 659/1999 (1), pursuant to which recovery shall relate to the aid received by the beneficiary, since the defendant failed to correctly quantify in the contested decision the amount of aid that the applicant may have received; and — Article 14(1), second sentence, of Council Regulation (EC) No 659/1999, since recovery in this case infringes general principles of EU law, namely: the principle of legitimate expectations; the principle of legal certainty; and the principle of proportionality.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)
EN Official Journal of the European Union C 165/23

Action brought on 22 March 2012 — Free v OHIM — Noble Gaming (FREEVOLUTION TM)

(Case T-127/12)

2012/C 165/40

Language in which the application was lodged: French

Parties

Applicant: Free (Paris, France) (represented by: Y. Coursin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Noble Gaming Ltd (Prague, Czech Republic)

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 13 December 2011 in Case R 2326/2010-2;

— hold that the earlier marks relied on and in particular the French word mark FREE No 1734391 are similar to the mark at issue ‘FREEVOLUTION’ within the meaning of Article 8(1)(b) and all the more so within the meaning of Article 8(5) of Regulation No 207/2009;

— hold that the application for registration of the mark at issue must be rejected on the basis of Article 8(1)(b) and all the more so in accordance with Article 8(5) of Regulation No 207/2009; and

— order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, both before the General Court and the OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Other party to the proceedings before the Board of Appeal.

Community trade mark concerned: Figurative mark containing the word element ‘FREEVOLUTION’ for goods and services in Classes 9, 41 and 42 — Community trade mark applied for No 8206443.

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

Mark or sign cited in opposition: French figurative mark ‘free LA LIBERTÉ N’A PAS DE PRIX’ No 99785839 for goods and services in Classes 9 and 38; French word mark ‘FREE’ No 1734391; French word mark ‘FREE MOBILE’ No 73536224 for goods in Class 9; Trade name ‘FREE’ used in business in France; domain name ‘FREE.FR’ used in business.

Decision of the Opposition Division: Rejection of the opposition in its entirety.

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

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Regulation No 207/2009 in so far as there is a distinction between how the similarity of the signs should be assessed under each of those provisions; infringement of Article 8(1)(b) of Regulation No 207/2009 in so far as there is indeed a likelihood of confusion with regard to the trade marks at issue; and, infringement of Article 8(5) of Regulation No 207/2009 in so far as there is a link between the marks ‘FREE’ and ‘FREEVOLUTION’ such that the mark with a reputation ‘FREE’ is prejudiced by the existence of the trade mark at issue.
EN Official Journal of the European Union C 80/23

Action brought on 17 January 2012 — Bauer v OHIM — BenQ Materials (Daxon)

(Case T-29/12)

2012/C 80/39

Language in which the application was lodged: German

Parties

Applicant: Erika Bauer (Schaufling, Germany) (represented by: A. Merz, lawyer)

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

Other party to the proceedings before the Board of Appeal: BenQ Materials Corp. (Gueishan Taoyuan, Taiwan)

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 9 November 2011 in Case R 2191/2010-2 in its entirety;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BenQ Materials Corp.

Community trade mark concerned: the word mark ‘Daxon’ for goods in Classes 3, 5 and 10

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

Mark or sign cited in opposition: the word mark ‘DALTON’ for goods and services in Classes 3, 5, 18, 25, 35, 41 and 44

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 98/25

Action brought on 1 February 2012 — Chrysamed Vertrieb v OHIM — Chrysal International (Chrysamed)

(Case T-46/12)

2012/C 98/41

Language in which the application was lodged: German

Parties

Applicant: Chrysamed Vertrieb GmbH (Salzburg, Austria) (represented by: T. Schneider, lawyer)

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

Other party to the proceedings before the Board of Appeal: Chrysal International B.V. (Naarden, Netherlands)

Form of order sought

The applicant claims that the Court should:

— uphold the action, annul the decision of the Board of Appeal of 22 November 2011 in Case R 0064/2011-1 and reject the opposition against the application for the Community trade mark;

— order OHIM or the potential intervener to pay the costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Chrysamed’ for goods in Class 5 (application No 6 387 071)

Proprietor of the mark or sign cited in the opposition proceedings: Chrysal International B.V.

Mark or sign cited in opposition: the international word mark ‘CHRYSAL’ for goods in Classes 1, 5 and 31 (trade mark No 645 337), the international word mark ‘CHRYSAL’ for goods in Class 1 (trade mark No 144 634) and the international figurative mark ‘CHRYSAL’ for goods in Classes 1, 3, 5 and 31 (trade mark No 877 785)

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue
EN Official Journal of the European Union C 157/10

Action brought on 26 March 2012 — Geipel v OHIM — Reeh (BEST BODY NUTRITION)

(Case T-138/12)

2012/C 157/18

Language in which the application was lodged: German

Parties

Applicant: Yves Geipel (Auerbach, Germany) (represented by: J. Sachs, lawyer)

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

Other party to the proceedings before the Board of Appeal: Jörg Reeh (Buxtehude, Germany)

Form of order sought

— Annul the contested decision of the First Board of Appeal of OHIM of 12 January 2012 and reject the opposition of 24 July 2009;

— Order OHIM to pay the costs of the proceedings, including the costs incurred in the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Yves Geipel

Community trade mark concerned: Figurative mark ‘BEST BODY NUTRITION’ (international registration No W 982 101, naming the European Union) for goods in classes 25, 28, 29, 30 and 32.

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

Mark or sign cited in opposition: Community trade mark No 4 020 161‘BEST4BODY’ for goods in class 25.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: There is no likelihood of confusion between the marks at issue.
2.

Second plea in law, alleging that the decision should be annulled on the grounds that: — transmitting the confidential information contained in the documents in question to the High Court of England and Wales for the purposes of use in the English proceedings cannot be justified on the basis of Article 4(3) TEU, as disclosure of such information will discourage undertakings in the future from co-operating with the Commission in its investigations and thereby interfere with the Commission’s ability to enforce competition law; — transmitting the confidential information contained in the documents in question to the High Court of England and Wales when that Court has expressly informed the Commission that it intends to disclose such information to third parties that are members of a confidentiality ring breaches paragraph 25 of the Cooperation Notice; — the protection afforded by the confidentiality ring in this case falls below the standards required by Article 339 TFEU and paragraph 25 of the Cooperation Notice. Disclosure of the confidential information contained in the documents in question to the High Court of England and Wales would, therefore, breach the Commission’s obligations under these principles.
EN Official Journal of the European Union C 194/21

Action brought on 2 April 2012 — Investrónica v OHIM — Olympus Imaging (MICRO)

(Case T-149/12)

2012/C 194/35

Language in which the application was lodged: Spanish

Parties

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

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

Other party to the proceedings before the Board of Appeal: Olympus Imaging Corp. (Tokyo, Japan)

Form of order sought

— Annul the decision of 31 January 2012 of the Fourth Board of Appeal of OHIM, in Case R 347/2011-4, and declare that, pursuant to Article 8(1)(b) of the Community trade mark regulation, the trade mark applicant’s appeal before OHIM ought to have been dismissed and the Opposition Division’s decision refusing trade mark application No 7 014 392‘MICRO’ (mixed) in its entirety upheld;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Olympus Imaging Corporation

Community trade mark concerned: Figurative mark ‘MICRO’, in black and white, for goods in Class 9 (Application No 7 014 392)

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

Mark or sign cited in opposition: Spanish figurative mark ‘micro’, in light blue and dark blue, for goods and services in Classes 9, 38 and 42 (Mark No 2736947)

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

Decision of the Board of Appeal: Appeal upheld and decision under appeal which refused the mark applied for annulled

Plea in law: Misapplication of Article 8(1)(b) of Regulation No 207/2009 given that there is a likelihood of confusion between the signs at issue.
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that the European Commission also committed a manifest error of assessment in holding that the merger undoubtedly did not raise any anti-competitive conglomerate effects in enterprise unified communications markets. In this connection, the applicants stress that given the increasing popularity of consumer unified communications services, enterprise customers wish to connect with customers using the tools of consumer unified communications. By expanding its established base of consumer unified communications customers, the merging company will have both the increased ability and the incentives to deny interoperability with competing enterprise communications products. The foreclosure effects will be reinforced by the pre-existing leading/dominant position already enjoyed by that company in adjacent markets, such as operating systems and enterprise application software products, e.g. Office and Outlook. In particular, the contested decision is inconsistent with the decision-making practice of the European Commission and the Court of Justice of the European Union, in relation to the importance of network effects in IT markets and the need to ensure interoperability with a view to preserving effective consumer choice, when such network effects are in play;
1.

First plea in law, alleging misapplication of Article 107(1) TFEU and infringement of European Union law. — Nature conservation in the Netherlands is a service of general interest within the meaning of Article 2 of Protocol No 26 on services of general interest. European Union competition law is therefore inapplicable; — Nature managers, nature conservation societies or land management organisations are wrongly categorised as undertakings within the meaning of Article 107(1) TFEU; — The subsidy scheme does not, in view of the conditions associated with that scheme, lead to an economic advantage for the beneficiaries for the purposes of Article 107(1) TFEU; — The Commission erred in its application of the fourth condition referred to in the judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I 7747; — The subsidy scheme does not have the effect of affecting trade between Member States.