ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 6/22

Action brought on 31 October 2011 — Nycomed v OHIM — Bayer Consumer Care (ALEVIAN DUO)

(Case T-561/11)

2012/C 6/40

Language in which the application was lodged: English

Parties

Applicant: Nycomed GmbH (Konstanz, Germany) (represented by: A. Ferchland, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bayer Consumer Care AG (Basel, Switzerland)

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 21 July 2011 in case R 1953/2010-1, and dismiss the opposition; and

— Order the opponent to bear the costs and fees of both the proceedings before the Opposition Division and the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ALEVIAN DUO’, for goods in class 5 — Community trade mark application No 6303201

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: Community trade mark registration No 786863 of the word mark ‘ALEVE’, for goods in class 5

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.
Official Journal of the European Union

Action brought on 14 November 2011 — Solar-Fabrik v OHIM (Premium XL)

(Case T-582/11)

(2012/C 25/113)

Language of the case: German

Parties

Applicant: Solar-Fabrik AG für Produktion und Vertrieb von solartechnischen Produkten (Freiburg im Breisgau, Germany) (represented by M. Douglas, 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 1 September 2011 in Case R 245/2011-1;

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

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Premium XL’ for goods in Classes 9 and 11

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has distinctive character.
EN Official Journal of the European Union C 32/31

Action brought on 28 November 2011 — Mega Brands v OHIM — Diset (MAGNEXT)

(Case T-604/11)

2012/C 32/64

Language in which the application was lodged: English

Parties

Applicant: Mega Brands International, Luxembourg, Zweigniederlassung Zug (Zug, Suisse) (represented by: A. Nordemann, lawyer)

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

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

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 27 September 2011 in case R 1695/2010-4 and reject the opposition No B 1383639; and

— Order the defendant to bear 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 in black and white ‘MAGNEXT’, for goods in class 28 — Community trade mark application No 6588991

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: Spanish trade mark registration No 2550099 of the word mark ‘MAGNET 4’, for goods in class 28; Community trade mark registration No 3840121 of the figurative mark in blue and white ‘Diset Magnetics’, for goods and services in classes 16, 28 and 41

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark 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 erred in its appreciation of the likelihood of confusion between the opposed mark and the applied mark.
EN Official Journal of the European Union C 32/31

Action brought on 29 November 2011 — Novartis v OHIM — Organic (BIOCERT)

(Case T-605/11)

2012/C 32/65

Language in which the application was lodged: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dr. Organic Ltd (Swansea, United Kingdom)

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 28 September 2011 in case R 1030/2010-4; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘BIOCERT’, for goods and services in classes 3, 4, 5, 29, 30, 31, 32, 35 and 44 — Community trade mark application No 7134984

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

Mark or sign cited in opposition: Austrian trade mark registration No 136273 of the word mark ‘BIOCEF’, for goods in class 5

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 76(1) of Council Regulation No 207/2009, as the Board of Appeal: (i) misinterpreted general principles laid down by the European courts and wrongly concluded that there is no likelihood of confusion between ‘BIOCEF’ and ‘BIOCERT’; and (ii) wrongly based its decision on facts which have not been forwarded by the parties of the proceedings.
—

annul Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria and Council Regulation (EU) No 950/2011 of 23 September 2011 amending Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria, in so far as those measures relate to the applicant, in that they add its name to the list of entities covered by Article 5 of Regulation (EU) No 442/2011 of 9 May 2011 and Articles 3 and 4 of Decision 2011/273/CFSP of 9 May 2011;
EN Official Journal of the European Union C 32/29

Action brought on 15 November 2011 — Przedsiębiorstwo Handlowe Medox Lepiarz Lepiarz v OHIM — Henkel (SUPER GLUE)

(Case T-591/11)

2012/C 32/59

Language in which the application was lodged: Polish

Parties

Applicant: Przedsiębiorstwo Handlowe Medox Lepiarz Jarosław Lepiarz Alicja sp. j. (Jaworzno, Republic of Poland) (represented by: M. Konieczyński, lawyer)

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

Other party to the proceedings before the Board of Appeal: Henkel Corp. (Gulph Mills, United States)

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 September 2011 in Case R 1147/2010-4;

— order the defendant to pay the costs, including the costs of representation in the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Przedsiębiorstwo Handlowe Medox Lepiarz Lepiarz

Community trade mark concerned: figurative trade mark depicting a tube in the colours white, black, grey and yellow and containing the word element ‘SUPER GLUE’, for goods in Classes 1 and 16 — Community trade mark application No 7 262 405

Proprietor of the mark or sign cited in the opposition proceedings: Henkel Corp.

Mark or sign cited in opposition: Word mark No 377 517‘SUPERGLUE’ registered in Benelux, for goods in Classes 1 and 16

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1) as regards establishment of the similarity of the trade marks and of the likelihood of confusion on the part of consumers

(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 58/10

Action brought on 16 December 2011 — Boehringer Ingelheim International v OHIM (RELY-ABLE)

(Case T-640/11)

2012/C 58/19

Language of the case: English

Parties

Applicant: Boehringer Ingelheim International GmbH (Ingelheim am Rhein, Germany) (represented by: V. von Bomhard, A. Renck and C. Steudtner, 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 30 September 2011 in case R 756/2011-4;

— Order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘RELY-ABLE’ for services in classes 38, 41 and 42 — International Registration (IR) No 1044333

Decision of the Examiner: Rejected the protection of the mark in the European Union for all the services applied for.

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in finding that the sign applied for is ‘not particularly fanciful or arbitrary’ and an ‘obvious misspelling of the word reliable’ with the result that it would be perceived as laudatory. It further erred when assuming that misspellings are ‘a frequent feature of promotional messages’ and that this was relevant to the case at hand.
2.

Second plea in law, alleging infringement of the principle of unjust enrichment by the Commission. The applicants submit that: — the Commission would be giving itself the benefit of the services under the contract and the results of the research carried out without paying for them if it were to recover the sum claimed covering the entirety of the services provided by the employee of TECHNION, M. K., for the MOSAICA contract; — the applicants are entitled to claim a refund of the costs relating to the services provided under the MOSAICA contract; — in the event of a refund, the applicants would not only be deprived of an amount corresponding to the services actually provided, but would also have to bear an additional loss since, in addition to having to make the refund, they would have to bear the costs incurred in carrying out the services provided.
7.

Seventh plea in law, alleging that the inclusion of the applicant on the list of sanctioned entities results from an error of fact, in that the applicant, as a public university having legal personality without representation of the Ministry of Defence and of the logistical support to the armed forces in its governing body, is not held or controlled by that minister or involved in scientific research relating to nuclear arms.
EN Official Journal of the European Union C 58/15

Action brought on 12 January 2012 — Laboratoires CTRS v Commission

(Case T-12/12)

2012/C 58/29

Language of the case: English

Parties

Applicant: Laboratoires CTRS (Boulogne-Billancourt, France) (represented by: K. Bacon, Barrister, M. Utges Manley, Solicitor, and M. Barnden, Solicitor)

Defendant: European Commission

Form of order sought

— Declare, pursuant to Article 265 TFEU, that the defendant has unlawfully failed to act, contrary to Article 10(2) of Regulation (EC) No 726/2004 (1);

— In the alternative, annul the decision of the defendant of 5 December 2011 declining to grant a marketing authorisation under Regulation (EC) No 726/2004; and

— Order the defendant to bear the costs of this application.

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, with regard to the action for failure to act lodged pursuant to Article 265 TFEU, that the refusal to adopt a final decision on the application for an authorisation for Orphacol is contrary to the requirements of Article 10(2) of Regulation (EC) No 726/2004, which requires a final decision to be adopted within a specified timeframe in accordance with the outcome of the Comitology Procedure.

2. Second plea in law, alleging, with regard to the action of annulment lodged pursuant to Article 263 TFEU in the alternative, that by adopting a decision that was rejected by the Standing Committee and the Appeal Committee under the Comitology Procedure, the defendant is in breach of Regulation (EU) No 182/2011 (2) and Regulation (EC) No 726/2004.

3. Third plea in law, alleging with regard to the action of annulment lodged pursuant to Article 263 TFEU in the alternative, that the decision is in any event vitiated by fundamental errors of law in the interpretation of Directive 2001/83/EC (as amended) (3), and defects of reasoning contrary to Article 296 TFEU.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1)

(2) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13)

(3) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)
EN Official Journal of the European Union C 80/24

Action brought on 23 January 2012 — Piotrowski v OHIM (MEDIGYM)

(Case T-33/12)

2012/C 80/40

Language of the case: German

Parties

Applicant: Elke Piotrowski (Viernheim, Germany) (represented by J. Albrecht, 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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 November 2011 in Case R 734/2011-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

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

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 75 of Regulation No 207/2009 as the Board of Appeal’s decision was based on reasons on which the applicant had had no opportunity to present her comments and infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the Community trade mark at issue was refused protection pursuant to Article 154(3) and Article 37(1) of Regulation No 207/2009 even though the mark was not ineligible for registration either under Article 7(1)(b) or Article 7(1)(c) of Regulation No 207/2009
EN Official Journal of the European Union C 73/29

Action brought on 16 January 2012 — Icelandic Group UK v Commission

(Case T-35/12)

2012/C 73/58

Language of the case: English

Parties

Applicant: Icelandic Group UK Ltd (Grimsby, United Kingdom) (represented by: V. Sloane, Barrister)

Defendant: European Commission

Form of order sought

— Annul Article 1(2) of Commission Decision C(2011) 8113 FINAL of 15.11.2011 finding that repayment of import duties is not justified in a particular case (rem 04/2010); and

— Order the defendant to pay the applicant’s legal and other costs and expenses in relation to this matter.

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 breach of essential procedural requirements and Article 906a of Commission Regulation 2454/93/EEC (1), as the defendant failed to observe applicant’s rights of defence in the procedure leading to the adoption of Article 1(2) of the contested decision, by adopting a decision adversely affecting the rights of the applicant without giving it the right to be heard on the basis for that unfavourable decision, namely the defendant’s assessment that the United Kingdom authorities had not committed an error as regards imports made from 1 December 2006 to 24 July 2007.

2. Second plea in law, alleging manifest error of assessment and breach of Article 220(2)(b), Article 236 and/or Article 239 of Council Regulation (EEC) No 2913/92 (2), as: — The defendant made a manifest error of assessment in finding that the conditions for repayment of customs duty under Article 220(2)(b) of Council Regulation (EEC) No 2913/92 were not met in the present circumstances. The assessment of the defendant that the United Kingdom authorities had not committed an error as regards imports made from 1 December 2006 to 24 July 2007 is manifestly wrong; — Further or alternatively, the defendant made a manifest error of assessment in deciding that the conditions for repayment of customs duty in Article 239 of Council Regulation (EEC) No 2913/92 were not met. The defendant’s assessment that the circumstances of the present case do not disclose a special situation within the meaning of Article 239 was manifestly wrong.

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1)
EN Official Journal of the European Union C 165/25

Action brought on 28 March 2012 — Wehmeyer v OHIM — Cluett, Peabody (Fairfield)

(Case T-139/12)

2012/C 165/44

Language in which the application was lodged: English

Parties

Applicant: Wehmeyer GmbH & Co. KG (Aachen, Germany) (represented by: C. Weil, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cluett, Peabody & Co. Inc. (New York, United States)

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 January 2012 in case R 2509/2010-1;

— Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal to the application for registration of the Community trade mark ‘Fairfield’; and

— Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Fairfield’, for goods in classes 3, 14, 18 and 25 — Community trade mark application No 6294342

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: Community trade mark registration No 3079481 of the figurative mark ‘FAIRFIELD BY ARROW’, for goods in class 25

Decision of the Opposition Division: Partly rejected the contested trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was a likelihood of confusion between the two trademarks.
1.

First plea in law, alleging an error of law in the reasoning given by the CST when examining the plea in law raised at first instance alleging a disregard of Articles 24a and 45(1) of the Staff Regulations of Officials of the European Union in that the Council failed, in the comparative examination of the merits and, more particularly, vocational training, to take account of the success of the person concerned in the examination of the training programme provided for in the certification procedure of officials in function group AST to move to function group AD (paragraphs 23 to 32 of the judgment under appeal). The Council argues that the finding in paragraph 28 of the judgment that the certification of officials in function group AST constitutes, by definition, vocational training is incorrect in law or, at the very least, inexact.
EN Official Journal of the European Union C 98/23

Action brought on 17 January 2012 — 3M Pumps v OHIM — 3M (3M Pumps)

(Case T-25/12)

2012/C 98/38

Language in which the application was lodged: Italian

Parties

Applicant: 3M Pumps Srl (Taglio di Po, Italy) (represented by: F. Misuraca, lawyer)

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

Other party to the proceedings before the Board of Appeal: 3M Company (St. Paul, United States)

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 October 2011 in Case R 2406/2010-1.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: 3M Pumps Srl

Community trade mark concerned: Figurative mark containing the word element ‘3M Pumps’, for goods and services in Classes 7, 16 and 38

Proprietor of the mark or sign cited in the opposition proceedings: 3M Company

Mark or sign cited in opposition: Figurative mark containing the word element ‘3M’, for goods and services in Classes 7, 16 and 38

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(a) and (b) and (5) of Regulation No 207/2009.
EN Official Journal of the European Union C 109/17

Action brought on 20 January 2012 — Vardar v OHIM — Joker (pingulina)

(Case T-32/12)

2012/C 109/38

Language in which the application was lodged: English

Parties

Applicant: Muslahadin Vardar (Löhne, Germany) (represented by: I. Höfener and M. Boden, lawyers)

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

Other party to the proceedings before the Board of Appeal: Joker, Inc. (Allen, United States)

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 17 November 2011 in case R 475/2011-4, and alter it so that the opposition is rejected and the applicant’s application for registration is granted; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘pingulina’, in orange, violet, blue, green, yellow and black, for goods in classes 20, 24 and 25 — Community trade mark application No 8402992

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: The opposition was based inter alia upon the International trade mark registration No 537386A of the figurative mark ‘PINGU’, in black and white, for goods inter alia in classes 20, 24 and 25

Decision of the Opposition Division: Upheld the opposition in its entirety and rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly concluded that there was a likelihood of confusion between the mark applied for and the earlier marks.