ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 234/44

Action brought on 22 June 2010 — mPAY24 GmbH v OHIM — ULTRA d.o.o. Proizvodnja elektronskih naprav (MPAY 24)

(Case T-275/10)

()

2010/C 234/79

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: Dr. H. G. Zeiner and S. Di Natale, lawyers)

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

Other party to the proceedings before the Board of Appeal: ULTRA d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

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 22 March 2010 in case R 1102/2008-1;

— Order the defendant to bear the costs of the proceedings; and

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

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38 — Community trade mark application No 2601656

Proprietor of the Community trade mark cited in the invalidity proceedings: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: The party requesting the declaration of invalidity relied its request on absolute grounds for refusal pursuant to Articles 52(1)(a), 7(1)(b), 7(1)(c) and 7(2) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Upheld the appeal and, as a result, annulled the decision of the Cancellation Division and declared the invalidity of the registered Community trade mark

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

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 7(1)(b) and 7(1)(c) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of these articles are applicable to the contested Community trade mark. In particular, the First Board of Appeal: (i) erred in overturning the previous decision of the Second Board of Appeal of 21 April 2004 which concerns the same matter and which is based on the same grounds; and (ii) erroneously found that the contested Community trade mark is descriptive for the goods and services in question as well as devoid of any distinctive character.

By its second plea, the applicant considers that the contested decision does not comply with the provisions of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in annulling the contested Community trade mark for all the goods and services registered in classes 9, 16, 35, 36 and 38 only on the basis of questionable and not corroborated assumptions.
EN Official Journal of the European Union C 260/19

Action brought on 15 July 2010 — Crocs v OHIM — Holey Soles and Partenaire Hospitalier International (Representation of footwear)

(Case T-302/10)

()

2010/C 260/26

Language in which the application was lodged: English

Parties

Applicant: Crocs, Inc. (Delaware, USA) (represented by: I. R. Craig, Solicitor)

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

Other parties to the proceedings before the Board of Appeal: Holey Soles Holdings Ltd (Vancouver, Canada) and Partenaire Hospitalier International (La Haie Foissière, 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 26 March 2010 in case R 9/2008-3;

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

Pleas in law and main arguments

Registered Community design subject of the application for a declaration of invalidity: No 257001-0001 (footwear)

Proprietor of the Community design cited in the invalidity proceedings: The applicant

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

Decision of the Cancellation Division: Declared the Community design invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision infringes Articles 7(1) and 6(1) of Council Regulation (EC) No 6/2002, as the Board of Appeal wrongly applied the provisions of these articles and was led to incorrect conclusions in relation to the novelty, the individual character and the technical function of the Community design.
EN Official Journal of the European Union C 260/21

Action brought on 28 July 2010 — ELE.SI.A v Commission

(Case T-312/10)

()

2010/C 260/29

Language of the case: Italian

Parties

Applicant: Elettronica e sistemi per automazione (ELE.SI.A) SpA (Giudonia Montecelio, Italy) (represented by: S. Bariatti, P. Tomassi and P. Caprile, lawyers)

Defendant: European Commission

Form of order sought

— confirm and declare that ELESIA has properly complied with its contractual obligations;

— confirm and declare that, by failing to pay the amount due in respect of ELESIA’s activities and by requesting repayment of the amount already paid, the Commission has breached its contractual obligations;

— accordingly, order the Commission to pay Euro 83 627,68, plus interest, in respect of the costs incurred by ELESIA for the purposes of the Project and which have not yet been reimbursed by the Commission;

— accordingly, annul, revoke — if necessary, through the issuance of corresponding credit notes — or in any event declare unlawful the debit notes by which the Commission has requested repayment from ELESIA, and award damages accordingly;

— in any event, order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The consortium, of which the applicant company in this case is coordinator, entered into a contract with the Commission for the realisation of the project ‘I-Way, Intelligent co-operative system in cars for road safety’, financed by funds allocated within the context of the ‘Sixth Framework Programme for Technological Research and Development’.

As it formed the view that serious irregularities had been committed during the realisation of the project in question, the European Commission decided to rescind the contract.

The applicant maintains, first, that the Commission’s conduct is in total breach of the relevant contractual provisions and of the applicable principles of law, such as those of equity, proportionality and good administration. Second, the applicant contends that, after it had correctly carried out all of its contractual obligations for almost the entire 36-month period provided for under the contract, the Commission has no intention of recognising any amount as due, on the basis, moreover, of an audit which is irregular in several respects, and notwithstanding the fact that the applicant cooperated fully in good faith throughout the contractual period and even thereafter.

In support of its contentions, the applicant submits, specifically, that it correctly and consistently carried out its contractual obligations, whereas, by contrast, the Commission breached Articles II.1.11, II.16.1, II.16.2 and II.29 of the General Contractual Conditions, as well as the applicant’s rights of defence and the provisions contained in Regulation No 2185/96. (1)

(1) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292 of 15.11.1996, p. 2).
Action brought on 18 August 2010 — Commission v Tornasol Films

(Case T-338/10)

()

(2010/C 288/89)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: A.-M Rouchaud-Joët, Agent, and R. Alonso Pérez-Villaneuva, lawyer)

Defendant: Tornasol Films SA (Madrid, Spain)

Form of order sought

— order the defendant to pay the applicant EUR 19 554,00 plus default interest calculated at the rate of 5 % per annum from 14 April 2009, and

— order Tornasol Films SA to pay all the costs incurred in the present proceedings.

Pleas in law and main arguments

The present action concerns the alleged breach of a contract concluded between the Commission and the defendant within the framework of the MEDIA Plus Programme.

The wording of that contract stipulated that the recipient is to deposit the equivalent of the amount received as Community support in a specified account within 30 days of the start of production and to submit to the Commission a reinvestment plan for that amount within six months from the same date.

In support of its form of order, the applicant claims:

— that the defendant has failed to comply with those contractual obligations although it has not presented any arguments and has not disputed the debit note sent by the Commission;

— if the obligations provided for in the contract have been breached by the beneficiary, the wording of the contract allows the Commission to rescind it and require the return of the sums paid as a financial contribution;
EN Official Journal of the European Union C 274/25

Action brought on 23 July 2010 — HIM v European Commission

(Case T-316/10)

()

2010/C 274/40

Language of the case: French

Parties

Applicant: Health Information Management (HIM) (Brussels, Belgium) (represented by: P. Zeegers, lawyer)

Defendant: European Commission

Form of order sought

— Declare the present application admissible and well-founded and, consequently,

— order the European Commission to pay the sum of EUR 11 821,35, together with default interest at the statutory rate applicable in Belgium from 16 June 2010;

— order the European Commission to pay all the costs and expenses inclusive, the amount of which is provisionally fixed at EUR 5 000.

Pleas in law and main arguments

By the present action, based on an arbitration clause, the applicant requests the General Court, in essence, to declare that, for the purposes of calculation of the applicant’s general costs to be met by the Commission (in respect of contracts concluded under the eTen programme specifically), that is to say, that part of the general costs capable of being connected to the services of the staff working on the project, not including sub-contractors in the applicant’s staff, since those sub-contractors do not incur any general costs to be borne by the applicant. Consequently, the costs of sub-contracts should not be included in the total amount of personnel costs by which the total amount of general costs is divided to arrive at the denominator to be used to determine the percentage of eligible general costs.

In support of its action, the applicant submits that, since sub-contractors’ costs do not form part of the eligible personnel costs, the fact of including sub-contractors in the applicant’s staff when calculating the amount of the total personnel costs to be used to determine the percentage of eligible general costs gives rise to an inconsistency.

In addition, the fact of including sub-contractors in the applicant’s staff causes damage to the applicant, since that method results in an increase in the amount of the denominator and, in consequence, gives a proportional decrease in the percentage of eligible general costs.
Official Journal of the European Union

Action brought on 26 August 2010 — Milux v OHMI (RECTALCONTROL)

(Case T-352/10)

()

(2010/C 288/101)

Language of the case: English

Parties

Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 July 2010 in case R 1443/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

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

Decision of the Board of Appeal: Dismissed the appeal

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

Action brought on 26 August 2010 — Milux v OHMI (HEARTCONTROL)

(Case T-350/10)

()

(2010/C 288/99)

Language of the case: English

Parties

Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 July 2010 in case R 1437/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts in this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.
EN Official Journal of the European Union C 301/51

Action brought on 13 September 2010 — ara v OHIM — Allrounder (Representation of a sports shoe bearing the letter A on the side)

(Case T-397/10)

()

2010/C 301/82

Language in which the application was lodged: German

Parties

Applicant: ara AG (Langenfeld, Germany) (represented by: M. Gail, 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: Allrounder SARL (Saarburg, France)

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 23 June 2010 in Case R 1543/2009-1;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Allrounder SARL.

Community trade mark concerned: Figurative mark representing a sports shoe with the letter ‘A’ on the side, for goods and services in classes 16, 18 and 25.

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

Mark or sign cited in opposition: National word mark ‘A’ for goods in classes 9, 18 and 25.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed as inadmissible.

Pleas in law: Infringement of Article 81 of Regulation (EC) No 207/2009 (1) in so far as the Board of Appeal incorrectly proceeded on the basis that the office arrangements as described by the appellant’s representatives were not such as to prove that all due care required by the circumstances was taken, and accordingly rejected the application for re-establishment of the appellant’s rights with respect to the time-limit for production of the statement of grounds of appeal.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 301/48

Action brought on 6 September 2010 — Euro-Information v OHIM (EURO AUTOMATIC CASH)

(Case T-392/10)

()

2010/C 301/77

Language in which the application was lodged: French

Parties

Applicant: Euro-Information — Européenne de traitement de l’information (Strasbourg, France) (represented by A. Grolée, lawyer)

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

Form of order sought

— Annul the decision of 17 June 2010 of the Second Board of Appeal of OHIM in Case R 892/2010-2 in so far as it dismissed the application for trade mark No 004114864 in respect of goods and services in Classes 9, 35, 36, 37, 38 and 42;

— Order OHIM to pay the costs incurred by the applicant in the proceedings before OHIM and in the present action, pursuant to Article 87 of the Rules of Procedure.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘EURO AUTOMATIC CASH’ for goods and services in Classes 9, 35, 36, 37, 38 and 42 — application No 4 114 864.

Decision of the Examiner: Refusal of the application for registration.

Decision of the Board of Appeal: Partial annulment of the examiner’s decision; partial refusal for registration of the trade mark applied for; decision taken subsequent to the General Court’s judgment in Case T-15/09 Euro-Information v OHIM (EURO AUTOMATIC CASH), judgment of 9 March 2010, not published in the ECR.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009, as the mark is not descriptive but, on the contrary, is distinctive for all of the goods and services in respect of which registration was refused.
—

The Commission committed a serious infringement of the principle of equal treatment by applying stricter standards only to Redaelli and refusing to grant it leniency, which, conversely, was granted to other undertakings whose requests for leniency contributed little in terms of ‘added value’, and considerably less than the added value contributed by the applicant. In so doing, the Commission also infringed the principle of protection of legitimate expectations because, essentially, it disregarded the applicant’s legitimate expectation that its own request would be assessed in the light of the criteria developed in the Commission’s practice at the time of the request, which were laid down in the 2002 Notice.
EN Official Journal of the European Union C 301/33

Appeal brought on 25 August 2010 by the European Commission against the judgment of the Civil Service Tribunal delivered on 15 June 2010 in Case F-35/08 Pachtitis v Commission

(Case T-361/10 P)

()

2010/C 301/57

Language of the case: Greek

Parties

Appellant: European Commission (represented by J. Currall and I. Khatzigiannis)

Other party to the proceedings: Dimitrios Pachtitis (Athens, Greece), supported by the European Data Protection Supervisor

Form of order sought by the appellant

The appellant claims that the General Court should:

— set aside the judgment of the Civil Service Tribunal of 15 June 2010 in Case F-35/08 Pachtitis v Commission;

— refer the case back to the Civil Service Tribunal for examination of the other pleas in support of annulment;

— order the respondent to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

By the above appeal, the appellant asks the General Court to set aside the judgment of the Civil Service Tribunal of 15 June 2010 in Case F-35/08 Pachtitis v Commission annulling the decisions of the European Personnel Selection Office of 31 May 2007 and 6 December 2007 whereby Dimitrios Pachtitis was excluded from the list of the 110 candidates who obtained the highest marks in the pre-selection tests of the open competition EPSO/AD/77/06, and ordering the Commission to bear its own costs and to pay those of Mr Pachtitis.

In support of its appeal, the Commission relies on the following pleas in law:

— infringement of Articles 1, 5 and 7 of Annex ΙΙΙ to the Staff Regulations of Officials of the European Communities;

— infringement of Community law, and in particular Article 2 of Decision 2002/620/ΕC (1) and Article 1 of Decision 2002/621/ΕC, (2) on the establishment of the European Personnel Selection Office;

— infringement of the obligation to state reasons for decisions.

(1) Decision 2002/620/ΕC of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions and the European Ombudsman of 25 July 2002 establishing a European Communities Personnel Selection Office — Declaration by the Bureau of the European Parliament, OJ 2002 L 197 p. 53

(2) Decision 2002/621/ΕC of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman of 25 July 2002 on the organisation and operation of the European Communities Personnel Selection Office, OJ 2002 L 197 p. 56
EN Official Journal of the European Union C 328/32

Action brought on 15 September 2010 — Yoshida Metal Industry v OHMI — Pi-Design and Others (surface covered with black circles)

(Case T-416/10)

()

2010/C 328/56

Language in which the application was lodged: English

Parties

Applicant: Yoshida Metal Industry Co., Ltd (Niigata, Japan) (represented by: S. Verea, K. Muraro, M. Balestriero, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Pi-Design AG (Triengen, Switzerland), Bodum France SA (Neuilly sur Seine, France), Bodum Logistics A/S (Billund, Denmark)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2010 in case R 1237/2008-1;

— Confirm the decision of the Cancellation Division of 15 July 2008 regarding Community trade mark application No 1372580;

— Confirm the validity of Community trade mark registration No 1372580;

— Order the defendant and the other parties to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark representing a surface covered with black circles for goods in classes 8 and 21 — Community trade mark registration No 1372580

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Trade mark right of the parties requesting the declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on absolute grounds for refusal pursuant to Article 7 of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the application for declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Annulled the contested decision and declared the Community trade mark registration invalid

Pleas in law: Infringement of Article 7(1)(e)(ii) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of this article are applicable to the contested Community trade mark.
(ii)

Infringement of Article 296 TFEU, since the applicant’s arguments were not refuted and the presumption that COMPANHIA PREVIDENTE exercised decisive influence over SOCITREL, for the purposes of attributing joint and several liability and calculating the fine during the period between 1998 and 2002, was not rebutted in a reasoned manner, and the grounds on which it was concluded that there was a decisive influence during the previous period, between 1994 and 1998, in which the presumption did not appear to apply, were not properly set out.