ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 24/63

Action brought on 27 November 2009 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti)

(Case T-471/09)

2010/C 24/111

Language in which the application was lodged: German

Parties

Applicant: Dr. August Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, 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: Bonfait BV

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 2 October 2009 in Case R 340/2007-4 concerning opposition No B 871 121;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Oetker Nahrungsmittel

Community trade mark concerned: Word mark ‘Buonfatti’ for goods in Classes 29 and 30 (Application No 3 939 915)

Proprietor of the mark or sign cited in the opposition proceedings: Bonfait BV

Mark or sign cited in opposition: in particular, the Benelux word mark ‘Bonfait’ No 393 133 and the figurative Community trade mark ‘Bonfait’ No 648 816 for goods in Classes 29 and 30

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Annulment of the decision of the Opposition Decision and refusal of the application to register

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

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

annul in part the decision made on 23 September 2009 by the First Board of Appeal of OHIM in so far as it dismissed in part an action brought by LG ELECTRONICS against the decision of 5 February 2009 refusing registration of the application for Community trade mark No 7 282 924 in so far as it applies to ‘electronic vacuum cleaners’;
EN Official Journal of the European Union C 24/62

Action brought on 23 November 2009 — Hellenic Republic v Commission

(Case T-469/09)

2010/C 24/109

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

Defendant: European Commission

Form of order sought

— annul the contested Commission decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

In its action contesting Commission Decision C(2009) 7044 final of 24 September 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2009 L 257, p. 28) in so far as the decision concerns financial corrections to its detriment, the Hellenic Republic puts forward the following two pleas for annulment.

By the first plea for annulment, concerning the fruit and vegetable (tomato) processing sector, the applicant pleads incorrect interpretation and application of Article 28(1)(f), Article 28(2), Article 31(1) and (2) and Article 3(2) of Regulation (EC) No 1535/2003 (1) and of the guidelines AGRI VI 5330/97, 17933/2000 and 63983/2002 concerning financial corrections, given that in that sector all the key controls were effected satisfactorily and there were deficiencies only in ancillary secondary controls.

By the second plea for annulment, concerning the public storage of rice, the applicant submits that there is no valid legal basis for imposing the correction, since the Commission misinterpreted Articles 4 and 6 of Regulation (EC) No 2148/1996, (2) or in the alternative that the principle of proportionality has been infringed.

(1) Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14).

(2) Commission Regulation (EC) No 2148/96 of 8 November 1996 laying down rules for evaluating and monitoring public intervention stocks of agricultural products (OJ 1996 L 288, p. 6).
EN Official Journal of the European Union C 51/36

Action brought on 16 December 2009 — Carlyle v OHIM — Mascha & Regner Consulting (CAFE CARLYLE)

(Case T-505/09)

2010/C 51/70

Language in which the application was lodged: English

Parties

Applicant: The Carlyle, LLC (St. Louis, United States) (represented by: E. Cornu, E. De Gryse and D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mascha & Regner Consulting KEG (Vienna, Austria)

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 8 October 2009 in case R 239/2009-4; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the request for revocation: The word mark “CAFE CARLYLE”, for services in class 42

Proprietor of the Community trade mark: The applicant

Party requesting the revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Rejected the request for revocation

Decision of the Board of Appeal: Revoked the Community trade mark concerned

Pleas in law: Infringement of Article 51(1)(a) of Council Regulation 207/2009, as the Board of Appeal erroneously employed a too restrictive interpretation of the concept of genuine use. Moreover, the Board of Appeal failed: (i) to take into consideration properly the evidence of use submitted by the applicant before the Cancellation Division; (ii) to assess correctly the scope of the said evidence of use; and (iii) to make an overall assessment thereof.
EN Official Journal of the European Union C 13/26

Action brought on 1 September 2010 — Elosta v Commission

(Case T-102/09)

()

2011/C 13/52

Language of the case: English

Parties

Applicant: Abdelrazag Elosta (Pinner, United Kingdom) (represented by: E. Grieves, Barrister, and A. McMurdie, Solicitor)

Defendant: European Commission

Form of order sought

— Annul Regulation (EC) No 1330/2008 (1) insofar as it relates to the applicant;

— Order the defendant to immediately remove the applicant from the annex to the said regulation; and

— Order the defendant and/or the Council of the European Union to pay, in addition to its own costs, those incurred by the applicant and any sums advanced by way of legal aid by the cashier of the Court of Justice of the European Union.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Regulation (EC) No 1330/2008, insofar as the name of the applicant has been placed on the list of persons and entities to which certain restrictive measures were imposed.

In support of his action, the applicant submits the following pleas in law:

Firstly, the Commission has failed to independently review the basis of the applicant’s inclusion in Annex I to Regulation (EC) No 881/2002 (2) at any point, or required any reasons or evidence for that inclusion.

In addition, the Commission has failed to provide to the applicant with any reasons at all and then failed to provide any adequate reasons justifying his inclusion in Annex I to Regulation (EC) No 881/2002 in breach of his right to an effective judicial remedy, the right to defend himself and in breach of his rights to property under the European Convention on Human Rights.

Finally, the continued inclusion in Annex I to Regulation (EC) No 881/2002 is irrational given that: (i) there were and are no reasons available which would satisfy the relevant criteria for inclusion in the said annex; (ii) the United Kingdom’s government’s position is that the applicant no longer fulfils the relevant criteria; and (iii) the judgments by a specialized UK Court that the Libyan Islamic Fighting Group has not merged with the Al-Qaida network and/or every person associated with the Libyan Islamic Fighting Group has an Al-Qaida violent global jihadist ideology.

(1) Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60).

(2) Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).
EN Official Journal of the European Union C 80/27

Action brought on 21 December 2009 — Niki Luftfahrt v European Commission

(Case T-511/09)

2010/C 80/48

Language of the case: German

Parties

Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

Defendant: European Commission

Form of order sought

— Annul the European Commission’s decision of 28 August 2009‘State Aid C 6/2009 (ex N 663/2008) — Austria Austrian Airlines — Restructuring Plan’ in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

— Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

The applicant challenges Commission Decision C (2009) 6686 final of 28 August 2009 concerning State aid in the course of the Austrian State’s sale of its shares in the Austrian Airlines group to Deutsche Lufthansa AG (C 6/2009 (ex 663/2008)). In that decision the Commission takes the view that, subject to certain conditions, the restructuring aid granted by the Republic of Austria to Austrian Airlines is compatible with the common market, provided that the restructuring plan notified to the Commission is implemented in full.

In support of its action for annulment the applicant, which operates a privately financed airline and lodged a complaint with the Commission regarding the restructuring aid at issue, submits, first, that the Commission has infringed Article 87(1) and (3)(c) EC, Article 88(2) EC and the Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2). In particular it claims that the Commission failed to appreciate that:

— the beneficiary of the aid at issue was not Austrian Airlines but Lufthansa, which is not a firm in difficulty and is therefore not a firm which merits aid,

— neither Austrian Airlines nor Lufthansa has provided an appropriate contribution of its own to the restructuring of Austrian Airlines,

— the notified restructuring measures are not in accordance with the guidelines, and

— the compensatory measures offered by the Republic of Austria are insufficient to reduce as far as possible negative effects of the aid on trading conditions.

Moreover, the applicant also submits that the aid at issue is inseparable from conditions which infringe the Community rules on freedom of establishment and thus Article 43 EC.

It also alleges infringement of Article 253 EC, inasmuch as the Commission has not stated proper reasons for the contested decision, in that:

— it did not ascertain and examine the situation on the relevant markets, in particular the position of the undertaking benefiting from the aid and the position of competitors on the markets, and

— it failed it to take account of the fact that in the past Austrian Airlines has received a large amount of aid that was contrary to Community law.

Lastly, the applicant complains that the Commission has abused its discretion.
EN Official Journal of the European Union C 80/35

Action brought on 18 January 2010 — CheckMobile v OHIM (carcheck)

(Case T-14/10)

2010/C 80/59

Language in which the application was lodged: German

Parties

Applicant: CheckMobile GmbH — The Process Solution Company (Hamburg, Germany) (represented by K. Lodigkeit, lawyer)

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

Form of order sought

— Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Fourth Board of Appeal) of 18. November 2009 (Case R 595/2009-4), in so far as it dismissed the application for registration of ‘carcheck’ in accordance with Article 7(1)(c) of Regulation No 40/94,

— order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘carcheck’ for goods and services in Classes 9, 16, 35, 36, 38, 41, 42 and 45 (Application No 7 368 681)

Decision of the Examiner: Partial refusal of registration

Decision of the Board of Appeal: Partial annulment of the Examiner’s Decision

Pleas in law: Infringement of Article 7(1)(c) of Regulation No 40/94 (1), since the Board of Appeal interpreted the absolute ground for refusal to register a mark, based on the exclusively descriptive character of the signs of which it consists, too broadly

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1)
EN Official Journal of the European Union C 100/60

Action brought on 15 February 2010 — Sphere Time v OHIM — Punch (watches)

(Case T-68/10)

2010/C 100/89

Language in which the application was lodged: English

Parties

Applicant: Sphere Time société anonyme (Windhof, Luxembourg) (represented by: C. Jäger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Punch, société par actions simplifiée (Nice, France)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 December 2009 in case R 1130/2008-3 and order the defendant to confirm the validity of the challenged Community registered design; and

— Order the defendant to pay the costs of the present proceedings and to enact that the other party to the proceedings before the Board of Appeal bears the costs of the applicant related to the invalidity and appeal proceedings.

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: A design registered for ‘watches’

Proprietor of the Community design: The applicant

Party requesting the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Decision of the Invalidity Division: Declared the contested Community design invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 4, 5 and 6 of Council Regulation No 6/2002, as the Board of Appeal wrongly considered the challenged design as lacking individual character and as not being new; infringement of Article 61(2) of Council Regulation No 6/2002 as the Board of Appeal has not correctly evaluated the applicant’s arguments and evidences submitted in the course of the proceedings, misinterpreted the freedom of the designer and based its decision on a false appreciation, thereby misusing its power.
EN Official Journal of the European Union C 100/61

Action brought on 19 February 2010 — Feralpi Holding SpA v European Commission

(Case T-70/10)

2010/C 100/91

Language of the case: Italian

Parties

Applicant: Feralpi Holding SpA (Brescia, Italy) (represented by: G. Roberti, avvocato, I. Perego, avvocato)

Defendant: European Commission

Form of order sought

— Annulment of the contested decision.

— Annulment or reduction of the fine imposed by the contested decision.

— An order that the defendant pay the costs.

Pleas in law and main arguments

Feralpi Holding raises the following pleas in law:

— Breach of the principle of collegiality, in so far as the Commission did not submit to the College of Commissioners the full text of the contested decision including all the necessary matters of fact and law.

— Erroneous selection of legal basis. It must be observed, in that regard, that the Commission could not base the contested decision alleging a breach of Article 65 CS on Regulation 1/2003, (1) once the ECSC Treaty ceased to be in force.

— Breach of the rights of the defence. It is observed on this point that the Commission did not send Feralpi Holding a statement of objections and did not place in a position it to exercise its rights of defence. Moreover, the Commission imposed inappropriate terms on Feralpi Holding and obstructed its right of access.

— Breach of the criteria for imputation of the infringement. According to the applicant, the Commission erroneously imputed the infringement to Feralpi Holding, without taking account of changes to the structure of the company made subsequently.

— It is argued, further, that in not taking account of the interchangeability of reinforcing bars and other manufactured articles in the steel industry, such as beams and wire mesh, the Commission erroneously defined the relevant market and denied the Community dimension of the relevant geographical market without reason.

— It is also pointed out that the Commission classified the conduct analysed in the decision as a single, complex and continuing infringement of Community competition rules, alleging that Feralpi Holding participated in that infringement, thus breaching Article 65 CS and making an error in the assessment of the facts.

Finally, the applicant states that the defendant erroneously fixed the amount of the fine.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
EN Official Journal of the European Union C 100/48

Action brought on 1 February 2010 — Internationaler Hilfsfonds v Commission

(Case T-36/10)

2010/C 100/73

Language of the case: German

Parties

Applicant: Internationaler Hilfsfonds e.V. (Rosbach, Germany) (represented by: H. Kaltenecker, lawyer)

Defendant: European Commission

Form of order sought

— Annul the Commission’s decisions of 9 October 2009 and 1 December 2009 in so far as the applicant is thereby refused access to the documents which have not been released;

— order the defendant to pay the costs of the proceedings and those of the applicant.

Pleas in law and main arguments

The applicant objects to the Commission’s decision of 9 October 2009 by which its application for access to the undisclosed documents on the file concerning the LIEN 97-2011 contract was refused in part, and to the Commission’s letter of 1 December 2009 informing the applicant that a decision on the applicant’s second application for access to the file of the LIEN 97-2011 contract could not be taken within the period prescribed.

In support of its application the applicant submits, in essence, that the Commission was not entitled to deny the applicant access to the documents applied for on the basis of the exceptions laid down under Article 4(3) and (4) of Regulation (EC) No 1049/2001. (1) The applicant further submits in that regard that there is an overriding public interest in the release of the documents which have not yet been made available.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 100/55

Appeal brought on 2 February 2010 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 30 November 2009 in Case F-17/09, Meister v OHIM

(Case T-48/10 P)

2010/C 100/81

Language of the case: German

Parties

Appellant: Herbert Meister (Muchamiel, Spain) (represented by H.-J. Zimmermann, lawyer)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought by the appellant

— Annul the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM;

— order the defendant to pay the costs.

Pleas in law and main arguments

The appeal is against the judgment of the Civil Service Tribunal of 30 November 2009 in Case F-17/09 Meister v OHIM by which the appellant’s action was dismissed as manifestly inadmissible.

In support of his appeal, the appellant claims that the action at first instance was necessary on the ground that the facts are directly materially connected with the subject-matter of the previous Joined Cases F-138/06 and F-37/08, which at the time the action was brought had not been decided. The appellant claims that the dismissal from the outset of Case F-17/09 as inadmissible without an oral hearing infringes the guarantee of the right to be heard in Article 6 ECHR. Furthermore, the appellant complains that the Civil Service Tribunal dismissed its request for a stay of proceedings in view of an appeal brought against the judgment in Case F-37/08. Finally, it complains that the court of first instance’s assessment of the subject-matter was incomplete an incorrect in law.
First, they claim that the Commission experienced serious difficulties during its preliminary examination of the compatibility of the State aid with the common market and, therefore, was obligated to initiate the formal investigation procedure provided for in Article 108(2) TFEU. They further state that the Commission’s failure to initiate the formal procedure denied applicants and other parties concerned of their right to be consulted during the Commission’s assessment. In the applicants’ opinion this constitutes a procedural defect in violation of the Treaty. Specifically, the serious difficulties encountered by the Commission are evidenced by: — the length and circumstances of the preliminary examination; — the failure of the Commission to identify the market for wings of aircraft with 100-149 seats as a relevant product market; — the failure of the Commission to analyse the impact of the State aid on competition in the market for wings of aircraft with 100-149 seats; — the Commission’s analysis of the impact of the State aid on competition for finished aircraft with 100-149 seats, which was insufficient and incomplete.