ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 194/22

Action brought on 11 April 2012 — Free v OHIM — Conradi + Kaiser (FreeLounge)

(Case T-161/12)

2012/C 194/37

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: Conradi + Kaiser GmbH (Kleinmaischeid, Germany)

Form of order sought

The applicant claims that the Court should:

— annul in part the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 January 2012 in Case R 437/2011-2;

— rule that the application for registration of the disputed mark should be rejected in its entirety on the basis of Article 8(1)(b) 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 Court and before OHIM.

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 ‘FreeLounge’ for goods and services in Classes 16, 35 and 41 — application for registration No 8442832

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

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

Decision of the Opposition Division: rejection of the application for the Community trade mark

Decision of the Board of Appeal: Partial annulment of the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 109/24

Action brought on 13 February 2012 — Sedghi and Azizi v Council

(Case T-66/12)

2012/C 109/52

Language of the case: English

Parties

Applicants: Ali Sedghi (Tehran, Iran) and Ahmad Azizi (London, United Kingdom) (represented by: S. Gadhia and S. Ashley, Solicitors, D. Wyatt, QC (Queen’s Counsel), and M. Lester, Barrister)

Defendant: Council of the European Union

Form of order sought

— Annul Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ L 319, 2.12.2011, p. 71) and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ L 319, 2.12.2011, p. 11), insofar as they concern the applicants; and that the decision to that effect would take immediate effect, without suspension;

— Declare inapplicability of Article 19(1)(b) and 20(1)(b) of Council Decision 2010/413/CFSP, and Article 16(2) of Council Regulation (EU) No 961/2010, as regards the second applicant;

— Order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants rely on two pleas in law.

1. First plea in law, alleging — that none of the legal criteria for listing the applicants is fulfilled, and there is no valid legal or factual basis for their listing; the Council has manifestly erred in assessing that the applicants’ listing is justified;

2. Second plea in law, alleging — that the contested Decision and Regulation impose unjustified and disproportionate restrictions on the applicants’ fundamental rights;

The second applicant relies on two additional pleas in law, alleging that:

— the contested Decision and Regulation constitute an unjustified and disproportionate restriction on his rights of free movement in the European Union; and
EN Official Journal of the European Union C 118/29

Action brought on 15 February 2012 — Nu Air Compressors and Tools v Commission

(Case T-76/12)

2012/C 118/49

Language of the case: English

Parties

Applicant: Nu Air Compressors and Tools SpA (Robassomero, Italy) (represented by: R. MacLean, Solicitor)

Defendant: European Commission

Form of order sought

— Annul Article 1 of Commission Decision C(2011) 8824 final and Article 1 of Commission Decision C(2011) 8812 final, both dated 6th December 2011, insofar as they only grant partial refunds of the anti-dumping duties paid by the applicant on imports of Chinese-made compressors applied under Council Regulation (EC) 261/2008 of 17 March 2008 imposing a definitive anti-dumping duty on certain compressors originating in the People’s Republic of China (1);

— Maintain in force contested Decisions until the European Commission has adopted measures necessary to comply with any judgment of the General Court, given in the present case; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging — that the European Commission committed a manifest error of assessment in applying an appropriate and reasonable unrelated EU importer profit margin, thereby failing to establish a reliable export price for the purpose of calculating the correct anti-dumping refund amounts leading to infringements of Articles 2(9) and 18(3) of the Basic Anti-Dumping Regulation (2).

2. Second plea in law, alleging — that the European Commission committed a manifest error of assessment by deducting anti-dumping duties as a cost in the calculation of the export price thereby failing to establish a reliable dumping margin for the purpose of calculating the correct anti-dumping refund amounts and in doing so violated Articles 2(9), 2(11) and 11(10) of the Basic Anti-Dumping Regulation.

3. Third plea in law, alleging — that the European Commission failed to inform the applicant of the necessary requirements for satisfying Article 11(10) of the Basic Anti-Dumping Regulation in a prompt and adequate manner thereby violating its rights of defence, as well as the principle of sound administration established in EU law and provided for in Article 41 of the Charter of Fundamental Rights of the European Union.

4. Fourth plea in law, alleging — that in a result, the European Commission unlawfully retained additional amounts of refunds of EU anti-dumping duties legitimately due to the applicant through the above-mentioned infringements of EU law.

(1) OJ L 81, 20.03.2008, p. 1

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51)
1.

First plea in law, alleging — that the substantive criteria for designation under the contested measures are not met in the applicant’s case and there is no legal or factual basis for its designation; and/or that the Council committed a manifest error of assessment in determining whether or not the criteria had been met; and — that the Council designated the applicant on the basis of insufficient evidence to establish that the criteria had been met and thereby committed a (further) manifest error of assessment, since the applicant does not satisfy any of the five criteria for designation provided for in Article 23(2) of Regulation No 267/2012; and that the Council has provided no evidence as to the contrary.
EN Official Journal of the European Union C 126/21

Action brought on 23 February 2012 — Gas v OHIM — Grotto (GAS)

(Case T-92/12)

2012/C 126/41

Language in which the application was lodged: French

Parties

Applicant: André Pierre Gas (Marseille, France) (represented by: L. Levy, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grotto Spa (Chiuppano, 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 17 November 2011 in Case R 600/2009-1 in its entirety and refer the case back to OHIM to be reconsidered in the light of the decision to be made;

— Order the proprietor of the disputed Community trade mark to pay all the future costs of these proceedings and to reimburse the applicant for the costs of appeal incurred by him to date.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘GAS’ for goods in Classes 9, 18 and 25 — registered Community trade mark No 882548.

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.

Grounds for the application for a declaration of invalidity: The grounds put forward for the application for the declaration of invalidity are based, on the one hand, on the application of Article 53(1)(a) and (c), Article 8(1)(b), Article 53(2) and Article 8(1) of Regulation No 207/2009 and, on the other, on French registrations No 1594704 and No 1627459 of figurative [marks] ‘-GAS- BIJOUX’ and ‘BIJOUX –GAS-’ for goods in Classes 14 and 25.

Decision of the Cancellation Division: Annulment of the Community trade mark.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and dismissal of the application for annulment.

Pleas in law:

Infringement of Article 56(3) of Regulation No 40/94 (now Article 57(3) [of Regulation No 207/2009]) and of Rule 22(3) and (4) of Regulation No 2868/95; infringement of Article 15(1) and (2) of Regulation No 40/94 and of Article L714(5)(b) of the French Intellectual Property Code; infringement of Article 73 of Regulation No 40/94 (now Article 75 [of Regulation No 207/2009]), in that the Board of Appeal committed a number of errors in law and of assessment as regards the evidence of genuine use of the earlier mark under Class 25.

Incorrect application of Article 52(1)(a) and Article 8(1)(b) of Regulation No 40/94 and infringement of Article 53 of Regulation No 40/94 and [the following] provisions of French law: Article 2262 of the Civil Code and Article L714(3) of the French Intellectual Property Code, in that the assessment by the Board of Appeal of the likelihood of confusion is incorrect.
EN Official Journal of the European Union C 200/18

Action brought on 26 April 2012 — Verus v OHIM — Maquet (LUCEA LED)

(Case T-186/12)

2012/C 200/38

Language in which the application was lodged: German

Parties

Applicant: Verus Eood (Sofia, Bulgaria) (represented by: S. Vykydal, lawyer)

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

Other party to the proceedings before the Board of Appeal: Maquet SAS (Ardon, France)

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 13 February 2012 in Case R 67/2011-4 and refer the case back to the Board of Appeal;

— order the defendant to pay the costs before the Court and the costs of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Maquet SAS

Community trade mark concerned: the word mark ‘LUCEA LED’ for goods in Class 10

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

Mark or sign cited in opposition: the word mark ‘LUCEO’ for goods in Classes 10, 12 and 28

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was allowed and the opposition was rejected

Pleas in law:

— infringement of Article 8(1) of Regulation No 207/2009,

— infringement of Article 76(2) of Regulation No 207/2009,

— infringement of the second sentence of Article 75 of Regulation No 207/2009,

— infringement of Rule 6(4) of implementing Regulation (EC) 2868/95 in conjunction with decision No EX-05-5 of the President of OHIM,
4.

Infringement of the Treaties under the second paragraph of Article 263 TFEU (third alternative) on account of the disregard of the assessment criterion under Article 114(4) and (6) TFEU as regards antimony, arsenic and mercury The applicant submits that, in so far as the Commission took the view that the Federal Government had failed to establish that Directive 2009/48/EC (1) no longer offers an appropriate level of protection or is harmful to health, there has been an infringement of the Treaties under the third alternative in the second paragraph of Article 263 TFEU, in that the Commission disregarded the criterion provided for under Article 114(4) and (6) TFEU for assessment as to whether and to what extent the maintenance of national provisions beyond the adoption of a harmonisation measure should be approved on the grounds of major needs referred to in Article 36 TFEU. The applicant takes the view that — in accordance with the judgment of the Court in Case C-3/00 Denmark v Commission [[2003] ECR I-2643] — the test is whether the applicant Member State has proved that those national provisions ensure a level of health protection which is higher than the Community harmonisation measure and that those provisions do not go beyond what is necessary to attain that objective.
—

Annul the decision of the Delegation of the European Union to Ukraine, dated 28 February 2012, contested in the present action, given in the framework of the tender EuropeAid/131567/C/SER/UA ‘Crimean tourism diversification and support project’; as well as subsequent decisions of the same authority and of the director of the DG Development of the European Commission issued in the subject-matter;
EN Official Journal of the European Union C 227/23

Action brought on 21 May 2012 — Indesit Company v OHIM — ILVE (quadrio)

(Case T-214/12)

2012/C 227/39

Language in which the application was lodged: Italian

Parties

Applicant: Indesit Company SpA (Fabriano, Italy) (represented by: G. Floridia and R. Floridia, lawyers)

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

Other party to the proceedings before the Board of Appeal: ILVE-Industria Lavorazione Veneta Elettrodomestici SpA (Campodarsego, Italy)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of 14 March 2012 in Case R 2219/2010-1 and declare Community trade mark No 7 313 158, which will use the word ‘quadrio’ in special writing to mark refrigerators, legally capable of being registered

Pleas in law and main arguments

Applicant for a Community trade mark: Indesit Company SpA

Community trade mark concerned: Figurative mark ‘quadrio’ for goods in Class 11 — Application No 7 313 158

Proprietor of the mark or sign cited in the opposition proceedings: ILVE-Industria Lavorazione Veneta Elettrodomestici SpA

Mark or sign cited in opposition: Word mark ‘QUADRA’ for goods in Class 11

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation No 207/2009
EN Official Journal of the European Union C 243/24

Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours)

(Case T-245/12)

2012/C 243/43

Language in which the application was lodged: English

Parties

Applicant(s): Gamesa Eólica, SL (Sarriguren, Spain) (represented by: E. Armijo Chávarri and A. Sanz Cerralbo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Enercon GmbH (Aurich, 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 1 March 2012 in case R 260/2011-1;

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a horizontal combination of green colours, for goods in class 7 — Community trade mark registration No 2346542

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on Article 52(1)(a) and on Article 52(1)(b) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Annulled the contested decision and rejected the request for a declaration of invalidity

Pleas in law:

— Infringement of Article 7(1)(b) of Council Regulation No 207/2009;

— Infringement of Article 62 of the Community trade mark Regulation; and
EN Official Journal of the European Union C 243/21

Action brought on 29 may 2012 — Wilmar Trading v OHIM — Agroekola EOOD (ULTRA CHOCO)

(Case T-232/12)

2012/C 243/39

Language in which the application was lodged: English

Parties

Applicant: Wilmar Trading Pte Ltd (Singapore, Singapore) (represented by: E. Miller, lawyer)

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

Other party to the proceedings before the Board of Appeal: Agroekola EOOD (Sofia, Bulgaria)

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 27 March 2012 in case R 87/2012-1;

— Order OHIM to consider the appeal filed against the decision of the Opposition Division of 10 November 2011 on opposition No B001760043 and to process in the normal course.

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 ‘ULTRA CHOCO’, for goods in classes 29, 30 and 31 — Community trade mark application No 9221111

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

Mark or sign cited in opposition: Singaporean trade mark registration T0113987B of the word mark ‘ultra choco’ for goods in class 29; European and Bulgarian non-registered trade mark ‘ULTRA CHOCO’, invoking Articles 8(3) and 8(4) of Council Regulation No 207/2009

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

Decision of the Board of Appeal: Deemed the appeal not to have been filed

Pleas in law: Infringement of Articles 8(3)(a)(ii) and (b) and 8(4) of Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs).
2.

Second plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection, since the applicant was not heard in the proceedings which led to a penalty being imposed on him, as the Council did not send him the evidence against him and as the applicant was not in a position effectively to make known his view in that regard.
EN Official Journal of the European Union C 258/24

Action brought on 28 June 2012 — Flying Holding and Others v Commission

(Case T-280/12)

2012/C 258/45

Language of the case: French

Parties

Applicants: Flying Holding NV (Antwerp-Wilrijk, Belgium); Flying Group Lux SA (Luxembourg, Luxembourg) and Flying Service NV (Antwerp-Deurne, Belgium) (represented by: C. Doutrelepont and V. Chapoulaud, lawyers)

Defendant: European Commission

Form of order sought

— Order the joinder of the present case with Case T-91/12;

— Declare the present action admissible and well founded;

— Annul the decision of the European Commission awarding contract No PMO2/PR/2011/103 to ABELAG AVIATION NV, as set out in contract award notice No 2012/S 83-135396 published on 28 April 2012 in the Supplement to the Official Journal of the European Union (OJ/S — S83);

— Order the European Commission to pay the applicants compensation of EUR 1 014 400, re-estimated following inflation, until the date of delivery of the future judgment of the General Court liquidating the damage, then increased by late-payment interest to be calculated from that date until payment in full;

— Order the European Commission to pay all the costs, including those incurred by the applicants.

Pleas in law and main arguments

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

1. First plea in law, alleging infringement of Article 89 of the Financial Regulation, (1) by twice consecutively awarding the contract in question to ABELAG AVIATION, in the context of framework contracts, without opening it to effective competition since only ABELAG AVIATION was authorised to enter a bid in both cases.

2. Second plea in law, alleging infringement of the third subparagraph of Article 123(1) of the Implementing Regulation (2) by awarding the contract in question to ABELAG AVIATION without having admitted a sufficient number of tenderers to ensure true competition by comparing different bids and accepting the most advantageous of them.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).
—

that import duties were entered in the account contrary to Article 220(2)(b) CCC (1), since the defendant erroneously considered that anti-dumping regulations adopted against imports from third countries are automatically applicable to goods in free circulation in the EU-Turkey customs union, and as a result, the defendant erroneously failed to inform traders that the AD Regulation concerned was also applicable to goods in free circulation in the EU-Turkey customs union. Alternatively, the Turkish authorities committed an error when they confirmed that the anti-dumping duties imposed on goods from third countries were not applicable to goods in free circulation in the EU-Turkey customs union. Further, the applicant submits that the Spanish customs authorities also committed an error since they assumed that goods accompanied by an A.TR certificate could not be subject to any additional duties or trade protection measures, and failed to inform economic operator that their imports from Turkey could be subject to trade measures, even if such goods were in free circulation.
3.

Failure of the contested decision to state reasons in so far as the Commission requires recovery of the aid granted to film producers and in so far as its analysis makes no mention of that alleged aid.