ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 252/40

Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission

(Case T-342/11)

2011/C 252/90

Language of the case: Spanish

Parties

Applicants: Confederación Española de Empresarios de Estaciones de Servicio (CEEES) (Spain) y Asociación de Gestores de Estaciones de Servicio (Madrid, Spain) (represented by: A Hernández Pardo and B Marín Corral, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

— annul the contested decision;

— as a consequence of the annulment, order the Commission to impose a fine or periodic penalty payments on REPSOL for having failed to comply with Article 9 of Regulation No 1/2003.

Pleas in law and main arguments

The present action has been brought against the decision of the European Commission of 28 April 2011, adopted in Case COMP/39461/CEEES AOP-REPSOL, the purpose of which was to determine whether the complaint lodged by the applicants on 30 May 2007 was admissible. That complaint was based on three main claims:

(a) The existence of horizontal agreements of the Asociación de Operadores Petrolíferos (AOP) and its members which limited competition between them.

(b) Infringement of Article 101 and Article 102 TFEU for fixing retail prices.

(c) Failure on the part of REPSOL to comply with the Commission's decision of 12 April 2006 (2006/446/EC) relating to a proceeding pursuant to Article 81 of the EC Treaty and adopted pursuant to Article 9 of Regulation (EC) No 1/2003 (Case COMP/B-1/38.348 — Repsol CPP), and the [absence] of consequences following from that failure.

In the contested decision the Commission considers that there were not sufficient grounds to adopt against Repsol any of the measures provided for in Regulation (EC) No 1/2003 for the failure of parties to comply with their commitments.

The applicants rely on two pleas in law in support of their action.

1. First plea in law, based on an infringement of Article 9 of Regulation (EC) No 1/2003, together with an infringement of the principle of direct effect of European Union law. — The applicants claim, in particular, that, in the light of the findings of the National Competition Authority, the Commission cannot simply ignore REPSOL's failure to comply with its commitment to put an end to its practice of price-fixing. Indeed, the facts set out by the National Competition Authority in relation to the infringement of Article 101 TFEU should have been sufficient for the Commission to consider it well established that REPSOL had failed to comply with its commitments. — The Commission's failure to intervene faced with a failure to comply with a commitment decision, on the basis that it has discretion in that regard, threatens the very essence of the mechanisms underlying the acceptance of commitments as an alternative solution to imposing sanctions and converts the Commission's power of discretion into an arbitrary power which could lead to a blatant denial of legal protection.
—

that the contested decision was issued in violation of Article 41(2)(c) of the Charter of fundamental rights of the European Union and Article 296 TFEU;
1.

First plea in law, alleging infringement of the product benchmark for hot metal, in breach of Article 10a of Directive 2003/87/EC (2) The applicant claims that the requirements for product benchmarks laid down in Annex I to the contested decision are illegal. The applicant claims that the determination of the product benchmark for hot metal infringes Article 10a of Directive 2003/87, since the Commission failed to take account of the full carbon content which is emitted during the production of iron and steel by including their use for the production of electricity, but applied a reduction of approximately 25 %. It follows from the wording of the second sentence of the third paragraph of Article 10a(1) of Directive 2003/87, the scheme as well as the objective and the historical interpretation of the Directive that the Commission is not entitled to apply such reductions.
1.

First plea in law, alleging a manifest error of law in the analysis of the concept of selectivity and in classifying the measure at issue as State aid. — The applicants submit that the Commission has not shown that the tax measure at issue favours ‘certain undertakings or the production of certain goods’ as required by Article 107(1) TFEU. The Commission merely assumes that the measure is selective because it applies only to the acquisition of shareholdings in foreign undertakings (in this case in non-Member countries) and not in domestic undertakings. The applicants submit that such reasoning is erroneous and circular: the fact that the application of the measure examined — as for any other tax rule — depends on the fulfilment of certain objective requirements does not render it, in law or in fact, a selective measure. Spain has produced evidence which shows that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, sector or origin. — In the second place, far from constituting a selective advantage, the prima facie difference in treatment under Article 12(5) TRLIS serves to place all transactions for the acquisitions of shares on an equal tax footing, whether they be national or foreign. In non-Member countries, there are considerable barriers to mergers, in practice precluding them; by contrast, mergers are possible in Spain and the amortisation of financial goodwill is permitted in relation to them. Consequently, Article 12(5) TRLIS does no more than extend such amortisation to the purchase of shareholdings in undertakings in non-Member countries, a transaction which represents the closest — and most feasible — functional equivalent to domestic mergers and is thus integral to the scheme and broad logic of the Spanish system. — The Commission is mistaken to find that there are no barriers to merger transactions with undertakings in non-Member countries, and it is therefore mistaken to set up the reference system for establishing selectivity while not accepting the arguments regarding tax neutrality. It is particularly mistaken in its analysis of the transactions in the United States, Brazil and Mexico. — Alternatively, the contested decision should be annulled at least in those cases where majority control is acquired of undertakings in non-Member countries in circumstances comparable to domestic mergers and thus justified by the scheme and broad logic of the Spanish system.
EN Official Journal of the European Union C 282/41

Action brought on 28 July 2011 — Maharishi Foundation v OHIM (TRANSCENDENTAL MEDITATION)

(Case T-412/11)

2011/C 282/78

Language of the case: English

Parties

Applicant: Maharishi Foundation Ltd (St. Helier, Jersey) (represented by: A. Meijboom, lawyer)

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

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 March 2011 in case R 1293/2010-2;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘TRANSCENDENTAL MEDITATION’ for goods and services in classes 16, 41, 44 and 45 — Community trade mark application No 8246647

Decision of the Examiner: Rejected the application for a Community trade mark, for part of the goods and services

Decision of the Board of Appeal: Allowed the appeal and remitted the case to the Examination Division for further prosecution

Pleas in law: The applicant puts forward four pleas in law: (i) infringement of Articles 75 and 7(1)(a) of Council Regulation No 207/2009, as the Board of Appeal did not explicitly decided on Article 7(1)(a) of CTMR, but did, nevertheless, consider that the mark ‘TRANSCENDENTAL MEDITATION’ is generic; (ii) infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly decided that the mark is devoid of any distinctive character; (iii) infringement of Article 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal incorrectly concluded that the mark consists exclusively of indications, which may serve, in trade, to designate characteristics of the goods or services, for which applicant filed the mark; and (iv) infringement of Article 7(3) of Council Regulation No 207/2009, as the Board of Appeal incorrectly decided that the mark has not become distinctive in relation to the goods or services, for which registration is requested in consequence of the use, which has been made of it.
1.

The first ground of appeal alleges breach of the obligation to state the reasons for its order, on the ground that in dismissing the appellants’ action as inadmissible the Civil Service Tribunal infringed Article 296 TFEU and the first sentence of Article 36 of the Statute of the Court of Justice of the European Union, as well as Article 7(1) of Annex 1 thereto, by not examining all the breaches of law alleged before it and by not enabling the appellants to ascertain its grounds for rejecting their pleas in law alleging that it was unlawful to interpret Article 90(2) of the Staff Regulations of officials of the European Union by contrary inference from Article 91 thereof and relying on the right of officials to submit to the appointing authority of their instituton a complaint against any act adversely affecting them within, under the second indent of Article 90(2), a period of three months starting on the date of notification of the decision to the person concerned. By failing to refute all the pleas in law and arguments deployed by the appellants in their action for annulment, the Civil Service Tribunal thereby infringed its obligation to state the reasons for its order.
2.

Second plea in law, alleging that the defendant infringed the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as: — at no time it provided for the communication of detailed reasons for the inclusion of the applicant in the lists of persons subject to the restrictive measures; and — it did not provide the applicant with the possibility to effectively exercise its’ rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing it to effectively request its removal from the lists of persons covered by the restrictive measures.
EN Official Journal of the European Union C 298/19

Action brought on 17 June 2011 — Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (PATRIZIA ROCHA)

(Case T-360/11)

2011/C 298/34

Language in which the application was lodged: Portuguese

Parties

Applicant: Fercal — Consultadoria e Serviços Lda (Lisbon, Portugal) (represented by: António J. Rodrigues, lawyer)

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

Other party to the proceedings before the Board of Appeal: Parfums Rochas SAS

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of OHIM notified on 21 April 2011 (Case R 2355/2010-2) in the cancellation proceedings Patrizia Rocha/Rochas and, therefore, adjudicate upon the appeal against the decision of 27 September 2010 in the opposition B-001559361.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: PATRIZIA ROCHA

Proprietor of the mark or sign cited in the opposition proceedings: Parfums Rochas SAS

Mark or sign cited in opposition:‘ROCHAS’

Decision of the Opposition Division: Opposition upheld.

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

Pleas in law: The time-limit for filing an appeal expired on 28 January 2011.

The applicant sent a notice of appeal by post on 27 January 2011, the day before the last day of the time-limit.
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It is alleged in this regard that the Commission, by adopting the contested measure, acted with the main purpose of achieving an end other than that stated, since it departed from the applicable standard adopted by the United Nations Economic Commission for Europe (UN/ECE).
EN Official Journal of the European Union C 319/22

Action brought on 11 August 2011 — Luna International v OHMI — Asteris (Al bustan)

(Case T-454/11)

2011/C 319/48

Language in which the application was lodged: English

Parties

Applicant: Luna International Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Asteris Industrial and Commercial Company SA (Athens, Greece)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2011 in case R 1358/2008-2;

— Order the defendant and the other party to the proceedings to bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘Al bustan’, for goods in classes 29, 30, 31 and 32 — Community trade mark registration No 3540846

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Articles 51(1)(b) and 52(1)(a) of Council Regulation (EC) No 207/2009, and based its request on the earlier Greek trade mark registration No 137497 of the figurative mark ‘AL BUSTAN’, for goods in class 29

Decision of the Cancellation Division: Declared the Community trade mark invalid in respect of part of the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 53(1), 57(2) and 57(3) of Council Regulation No 207/2009, as the Board of Appeal wrongly concluded that the proprietor of the earlier national mark had furnished proof that during the five years preceding the date of the application for declaration of invalidity, the earlier mark had been put to genuine use in the Member State in which it was registered in connection with the goods for which it was registered or that there were proper reasons for non-use. Further the Board of Appeal made impermissible inferences from material of low (or no) evidentiary value.
—

The Commission applied the law incorrectly to the facts and did not have regard, in particular, to the fact that BPP was no longer trading or that the purpose of the guarantee was exclusively to provide funding to meet certain balance-sheet liabilities predating the grant of the guarantee. The guarantee granted did not confer an advantage on BPP, did not affect trade between Member States, did not distort competition, nor was it likely to produce those effects, and accordingly it could not be regarded as incompatible with the internal market.
EN Official Journal of the European Union C 355/23

Action brought on 27 September 2011 — BTL Diffusion v OHIM — dm-drogerie markt (babyTOlove)

(Case T-518/11)

2011/C 355/42

Language in which the application was lodged: English

Parties

Applicant: BTL Diffusion (Saint Cloud, France) (represented by: A. Berendes, lawyer)

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

Other party to the proceedings before the Board of Appeal: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 July 2011 in case R 883/2010-2 to the extend that it: (i) upheld the opposition and rejected the contested Community trade mark application for ‘surgical medical, dental and veterinary apparatus and instruments, orthopaedic articles; suture materials’ in class 10 and ‘clothing, footwear headgear’ in class 25, and (ii) dismissed the applicant’s request to annul the contested decision on a point not raised in the appeal to the extent that it upheld the opposition for ‘games and playthings; gymnastic and porting articles not included in other classes’ in class 28; and

— Confirm the said decision for ‘artificial limbs, eyes and teeth’ in class 10 and ‘decorations for Christmas trees’ in class 28.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘babyTOlove’, for goods in classes 10, 25 and 28 — Community trade mark application No 7104219

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: International trade mark registration No 935598 of the word mark ‘babylove’, for goods in classes 3, 5, 8, 9, 10, 11, 12, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30 and 32; International trade mark registration No 979365 of the word mark ‘Baby Love’, for goods in classes 3, 5, 8, 9, 10, 11, 12, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30 and 32

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division; upheld the opposition and rejected the contested Community trade mark application for part of the goods in class 10 and 25; dismissed the appeal for the remainder

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal incorrectly assessed likelihood of confusion.
1.

First plea in law: non-contractual liability of the Commission arising from an unlawful act on account of an infringement of the fundamental principles of Community law, consisting in a breach of the principle of proportionality. The adjustment by means of Regulation (EC) No 1468/2006 (1) of the negative fat correction system in the detailed rules applying Regulation No 1788/2003 was, from the outset, unsuited to ensuring the achievement of the aims of those regulations — to reduce the imbalance between supply and demand on the milk and milk-product market and resulting structural surpluses — and the adjustment at issue imposes a heavy and disproportionate burden on the applicants, which jeopardises the management of their businesses. Accordingly, there has been an infringement of the principle of proportionality.
EN Official Journal of the European Union C 370/25

Action brought on 19 September 2011 — Euro-Information v OHIM (EURO AUTOMATIC PAIEMENT)

(Case T-497/11)

2011/C 370/42

Language of the case: 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

The applicant claims that the Court should:

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 July 2011 in Case R 370/2011-2;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs incurred by the applicant in the proceedings before OHIM and in the present case

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘EURO AUTOMATIC PAIEMENT’ for goods and services in Classes 9, 35, 36, 37, 38, 42 and 45

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)(c) of Regulation No 207/2009 in so far as the mark submitted for registration is not descriptive.
EN Official Journal of the European Union C 362/20

Action brought on 10 October 2011 — Hultafors Group v OHIM — Società Italiana Calzature (Snickers)

(Case T-537/11)

2011/C 362/30

Language in which the application was lodged: English

Parties

Applicant: Hultafors Group AB (Bollebygd, Sweden) (represented by: A. Rasmussen and T. Swanstrøm, lawyers)

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

Other party to the proceedings before the Board of Appeal: Società Italiana Calzature SpA (Milano, Italy)

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 9 August 2011 in case R 2519/2010-4; and

— Order the defendant to bear its own as well as the third party’s costs, including those incurred during the appeal and opposition 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 ‘Snickers’, for goods in classes 8, 9 and 25 — Community trade mark application No 3740719

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: Italian trade mark registration No 348149 of the word mark ‘KICKERS’, for goods in classes 3, 14, 16, 18, 24, 25, 28, 32 and 33

Decision of the Opposition Division: Upheld the opposition for all the contested goods

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 assumed that a risk of confusion exists between the trade mark application and the opposing trademark.
EN Official Journal of the European Union C 13/18

Action brought on 28 October 2011 — Symbio Gruppe v OHIM — ADA Cosmetic (SYMBIOTIC CARE)

(Case T-562/11)

2012/C 13/38

Language in which the application was lodged: German

Parties

Applicant: Symbio Gruppe GmbH & Co. KG (Herborn, Germany) (represented by: A. Schulz and C. Onken, lawyers)

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

Other party to the proceedings before the Board of Appeal: ADA Cosmetic GmbH (Kehl, Germany)

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 18 August 2011 in Case R 2121/2010-4;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: ADA Cosmetic GmbH.

Community trade mark concerned: International Registration of a figurative mark containing the word element ‘SYMBIOTIC CARE’ for goods in Classes 3, 5, 29 and 30.

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

Mark or sign cited in opposition: Word and figurative marks ‘SYMBIOFLOR’ and ‘SYMBIOLACT’, international registration of the word mark ‘SYMBIOFEM’ and figurative mark ‘SYMBIOVITAL’ for goods in Classes 1, 3, 5, 29 and 32.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is a likelihood of confusion between the marks at issue, and infringement of Article 75 of Regulation No 207/2009, since the Board of Appeal disregarded the fact that the trade marks on which the opposition was based form a family of marks.