ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 267/70

Action brought on 25 August 2009 — Novartis v OHIM — Sanochemia Pharmazeutika AG

(Case T -331/09)

2009/C 267/128

Language in which the application was lodged: German

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: N. Hebeis, lawyer)

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

Other part to the proceedings before the Board of Appeal of OHIM: Sanochemia Pharmazeutika AG

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 18 June 2009 in Case R 1601/2007-1; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: Sanochemia Pharmazeutika AG

Community trade mark concerned: the word mark, ‘TOLPOSAN’ for goods in Class 5 (Registration No 4 134 383)

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

Mark or sign cited in opposition: the international registration of the word mark ‘TONOPAN’ for goods in Class 5 (No 227 508)

Decision of the Opposition Division: Opposition dismissed

Decision of the Board of Appeal: Appeal dismissed

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

(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 297/32

Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

(Case T-405/09)

2009/C 297/48

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus)

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

Forms of order sought

— Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Application No 6 735 401)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: In its assessment of the mark applied for, the Office for Harmonisation in the Internal Market applied criteria which are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods.
EN Official Journal of the European Union C 282/58

Action brought on 30 September 2009 — SPAR v OHIM — SPA Group Europe (SPA GROUP)

(Case T-378/09)

2009/C 282/109

Language in which the application was lodged: German

Parties

Applicant: SPAR Handelsgesellschaft mbH (Schenefeld) (represented by: R. Kaase and J.-C. Plate, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: SPA Group Europe Ltd & Co. KG (Nürnberg, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 123/2008-1 for being incompatible with Article 8(1)(b) of Regulation (EC) No 40/94 (1);

— Order OHIM to pay the costs incurred both in these proceedings and in the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: SPA Group Europe Ltd & Co. KG

Community trade mark concerned: the word mark ‘SPA GROUP’ for goods and services in Classes 16, 35, 41 and 44 (Application No 4 038 171)

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

Mark or sign cited in opposition: the German figurative mark ‘SPAR’ for goods and services in Classes 1 to 36 and 38 to 41 (No 30 108 039.9) and the figurative German mark ‘SPAR’ for services in Classes 35, 36 and 39 (No 30 404 087.8)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 40/94, since there is a likelihood of confusion between the two marks at issue

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 312/32

Action brought on 5 October 2009 — Donau Chemie v Commission

(Case T-406/09)

2009/C 312/53

Language of the case: German

Parties

Applicant: Donau Chemie AG (Vienna, Austria) (represented by: S. Polster, W. Brugger and M. Brodey, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 2 of the contested Commission Decision C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries, in so far as it concerns the applicant;

— in the alternative, reduce noticeably and appropriately the amount of the fine imposed on the applicant by the Commission in the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industry. The contested decision imposed a fine on the applicant and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

In support of its action, the applicant alleges infringement of the EC Treaty and of the rules concerning its application and submits, in particular, the following pleas in law:

— Unlawful assessment of the basic amount of the fine as well as the additional amount to be determined pursuant to Paragraph 25 of the Guidelines on setting fines; (1)

— unlawful failure to take into consideration mitigating circumstances in determining the fine;

— unlawful application of the Commission notice on immunity from fines, (2) since the level of reduction of the fine from which the applicant benefited on the ground of evidence provided by it was too low;

— infringement of the principles of equal treatment and proportionality in respect of determining the fine;

— unlawful failure to consider a reduction of the fine to take account, in accordance with Paragraph 35 of the Guidelines on setting fines, of the undertaking’s inability to pay and/or, in accordance with Paragraph 37 of the Guidelines on setting fines, the particularities of the given case;

— infringement of Article 253 EC on the grounds of failure to state the reasons for the contested decision.

(1) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

(2) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
EN Official Journal of the European Union C 297/31

Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others

(Case T-403/09)

2009/C 297/46

Language of the case: Italian

Parties

Applicant: Tecnoprocess Srl (Rome, Italy) (represented by: A. Majoli, lawyer)

Defendants: Delegation of the European Commission to Morocco, Delegation of the European Commission to the Republic of Nigeria and Commission of the European Communities

Form of order sought

— Declare that the Delegation to Abuja, the Delegation to Rabat and the European Commission have been unjusfiably enriched.

— Consequently, order the Delegation to Abuja, the Delegation to Rabat and the European Community jointly and severally to pay the applicant the sum of EUR 114 069,94, together with interest until payment in full, or such other amount as the Court of First Instance may find to be appropriate, together with interest on that amount until payment in full.

— Order that the Delegation to Abuja, the Delegation to Rabat and the European Commission be jointly and severally liable to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant in the present proceedings, which is the same party as the applicant in Case T-264/09 Tecnoprocess v Commission and Delegation of the European Commission to the Kingdom of Morocco and in Case T-367/09 Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria, claims that in the performance of the contracts concluded with the Moroccan and Nigerian authorities that are the subject-matter of those cases the abovementioned Delegations and the European Commission have unjustifiably refused to enter into negotiations for the settlement of a number of issues that arise in relation to the execution of the contracts in question; and that notwithstanding that the applicant has, on several occasions, proposed to the Community institutions that the gains and losses arising under those contracts should be offset.

The result of that state of affairs is that the Delegations and the Commission have unjustifiably withheld payment of very significant sums which should have been transferred to the applicant, thereby giving rise to a situation which constitutes unjustified enrichment.
EN Official Journal of the European Union C 11/37

Action brought on 20 November 2009 — Herm. Sprenger v OHIM — Kieffer Sattlerwarenfabrik (form of a stirrup)

(Case T-463/09)

2010/C 11/69

Language in which the application was lodged: German

Parties

Applicant: Herm. Sprenger GmbH & Co. KG (Iserlohn, Germany) (represented by: V. Schiller, 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: Georg Kieffer Sattlerwarenfabrik GmbH (Munich, Germany)

Form of order sought

— set aside the decision delivered on 4 September 2009 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in Appeal Proceedings R 1614/2008-4;

— dismiss the application brought by the company Georg Kieffer Sattlerwarenfabrik GmbH for a declaration that the applicant’s Community trade mark No 1 599 620 is invalid;

— order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the three-dimensional Community trade mark No 1 599 620 for goods in Class 6

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Georg Kieffer Sattlerwarenfabrik GmbH

Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration that the Community trade mark in issue is invalid

Pleas in law:

— Breach of Article 52(1)(a), in conjunction with Article 7(1), of Regulation (EC) No 207/2009 (1) on the ground of an incorrect finding that the mark is devoid of any original distinctive character;

— Breach of Article 52(1)(a) and 52(2), in conjunction with Article 7(3), of Regulation (EC) No 207/2009 on the ground that it was wrongly assumed that the disputed mark had not acquired distinctive character through use;

— Breach of the first clause of Article 76(1) of Regulation No 207/2009 in that the relevant facts were not examined in the requisite manner;

— Breach of Article 83 of Regulation No 207/2009 in respect of the rights of the defence;

— Breach of Article 77(1) of Regulation No 207/2009 in that the Board of Appeal ought to have acceded to the applicant’s alternative request for oral proceedings;

— Breach of the EC Treaty in respect of the basic right to equitable proceedings.

(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 24/67

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICOCENTER)

(Case T-480/09)

2010/C 24/119

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 — R 1045/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 935 185) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) in respect of services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 24/60

Action brought on 23 November 2009 — Comercial Losan v OHIM — McDonald's International Property (Mc. Baby)

(Case T-466/09)

2010/C 24/106

Language in which the application was lodged: Spanish

Parties

Applicant: Comercial Losan (Zaragoza, Spain) (represented by: A. Vela Ballesteros, 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: McDonald’s International Property Co. Ltd (Delaware, United States)

Form of order sought

— uphold the action brought against the decision of the Board of Appeal of 1 September 2009 — R 1706/2008-1 Mc Baby/Mc Kids in the opposition proceedings No B 1049362 (Community trade mark application 4 441 393), allow registration of the Community trade mark applied for, and order the opposing party to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Comercial Losan

Community trade mark concerned: Figurative mark containing the word element ‘Mc. Baby’ (registration application No 4 741 393) for goods and services in Classes 25, 35 and 39

Proprietor of the mark or sign cited in the opposition proceedings: McDonald’s International Property Co. Ltd.

Mark or sign cited in opposition: Community figurative mark containing the word element ‘McKids’ (mark No 3 207 354) for goods in classes 16, 25 and 28; Community word mark ‘McDONALD’S’ (mark No 62 497) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42; and Community figurative mark containing the word element ‘McDONALD’S’ (mark No 62 521) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42

Decision of the Opposition Division: Partial upholding of the opposition.

Decision of the Board of Appeal: Partial upholding of the appeal.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 40/94, replaced by Regulation No 207/2009.
EN Official Journal of the European Union C 37/40

Action brought on 27 November 2009 — McLoughney v OHIM — Kern (Powerball)

(Case T-484/09)

2010/C 37/56

Language in which the application was lodged: English

Parties

Applicant: Rory McLoughney (Thurles, Ireland) (represented by: J. M. Stratford-Lysandrides, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Ernst Kern (Zahling, 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 30 September 2009 in case R 1547/2006-4;

— Allow the opposition to the Community trade mark application No 3 164 779; and

— In the alternative, remit the opposition to the defendant for further consideration in accordance with the judgment of the Court.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘Powerball’, for goods in classes 10, 25 and 28

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

Mark or sign cited: Non-registered mark ‘POWERBALL’, used in the course of trade in Ireland and the United Kingdom

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(3) and 73 of Council Regulation No 40/94 (which became Articles 8(3) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95 (1), as the Board of Appeal failed to consider the opposition under Article 8(3) of Council Regulation No 40/94 and should have recognised that the applicant had the requisite authority to oppose the Community trade mark concerned; infringement of Articles 8(4) and 73 of Council Regulation No 40/94 (which became Article 8(4) and 75, respectively, of Council Regulation No 207/2009) and Rules 50(2) and 52(1) of Commission Regulation No 2868/95, as the Board of Appeal failed to consider the opposition under Article 8(4) of Council Regulation No 40/94 and should have recognised that the applicant was the proprietor of the earlier rights and that it had used the mark cited in the opposition in the course of trade.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 24/61

Action brought on 24 November 2009 — JSK International Architekten und Ingenieure v ECB

(Case T-468/09)

2010/C 24/108

Language of the case: German

Parties

Applicant: JSK International Architekten und Ingenieure GmbH (Frankfurt am Main, Germany) (represented by: J. Steiff and K. Heuvels, lawyers)

Defendant: European Central Bank

Form of order sought

— Annul the ECB’s award decision of 6 August 2009 and the decision on the complaint of 14 September 2009 by the body within the ECB responsible for review proceedings;

— declare that (i) the annulled award decision is to be replaced by the award of the contract to the applicant, (ii) in the alternative, that the procedure by which the contract was awarded is to be repeated from the moment tenderers were invited to submit bids, this time to include JSK’s bid, (iii) in the final alternative, to repeat the procedure by which the contract was awarded from the very beginning;

— only in the alternative — and only if, as is not likely, the applications under 1 and 2 above are dismissed — award the applicant damages in the amount of its positive interest (lost profit), provisionally estimated to amount to EUR 900 000; in the alternative, in the amount of its negative interest (cost of preparing the tender), provisionally estimated to amount to EUR 80 000;

— order the defendant to pay the costs of the proceedings and the extrajudicial costs necessarily incurred by the applicant in taking the appropriate legal action (lawyers’ fees and expenses);

— grant the applicant unrestricted access to the files, which has been denied to date.

Pleas in law and main arguments

By its claims, the applicant takes issue with, on the one hand, the decision of the ECB’s award committee of 6 August 2009 to reject the bid submitted by the applicant in response to the call for tenders in respect of coordination and site management tasks relating to the new ECB building in Frankfurt am Main (T109 Bauleiter), and, on the other hand, the decision of the body within the ECB responsible for review proceedings of 14 September 2009 to reject the applicant’s complaint brought against that award decision. In the alternative, the applicant has applied for damages.

In support of its application, the applicant submits, first, that the award decision contains errors because of a conflict of interests. In this respect, the applicant alleges that there has been an infringement of the principle of good administration within the meaning of Article 41 of the Charter of Fundamental Rights of the European Union.

Second, the applicant submits that the failure to consider its bid constitutes an error of law and takes issue with the fact that its bid was excluded on grounds of inadequacy and low quality.

Finally, the applicant claims that procedural rights were infringed with respect to transparency and the right to legal protection, such as an infringement of the right of access to the file.
EN Official Journal of the European Union C 51/36

Action brought on 16 December 2009 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

(Case T-503/09)

2010/C 51/69

Language in which the application was lodged: French

Parties

Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, 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: Umarex Sportwaffen GmbH & Co KG (Arnsberg, Germany).

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of 8 October 2009 in so far as it declared the mark AK 47 invalid;

— in accordance with Articles 87(2) and 92 of the Rules of Procedure, order OHIM to pay the costs including the costs incurred by the applicant for the purposes of the present procedure, in particular the costs associated with the translation of documents, lawyer’s fees, and, in so far as necessary, travel and hotel costs; the Court is asked to assess that sum at EUR 20 000

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark ‘AK 47’ for goods and services in Classes 9, 28 and 38 (Community trade mark No 3 249 381)

Proprietor of the Community trade mark: Cybergun

Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co KG

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the trade mark at issue

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

Pleas in law: Infringement of Article 7(1) of Regulation (EC) No 40/94 [now Article 8(1) of Regulation (EC) No 207/2009] and Article 51(1) of Regulation No 40/94 [now Article 52(1)(b) of Regulation (EC) No 207/2009]