ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 194/20

Action brought on 30 March 2012 — Comsa v OHIM — COMSA (COMSA)

(Case T-144/12)

2012/C 194/34

Language in which the application was lodged: Spanish

Parties

Applicant: Comsa, SA (Barcelona, Spain) (represented by: M. Aznar Alonso, lawyer)

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

Other party to the proceedings before the Board of Appeal: Constructora de obras municipales, SA (COMSA) (Madrid, Spain)

Form of order sought

— Uphold the action and declare that points 2, 3 and 5 of the decision of the Second Board of Appeal of 10 January 2012 in Joined Cases R 518/2011-2 and R 795/2011-2 are not consistent with Council Regulation (EC) No 40/94 on the Community trade mark (now Regulation (EC) No 207/2009);

— order the defendant and, where appropriate the intervener, to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Constructora de obras municipales, SA (COMSA)

Community trade mark concerned: Word mark ‘COMSA’ for goods and services in Classes 19, 35, 36, 37, 39 and 42 — Community trade mark application No 7 091 051

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

Mark or sign cited in opposition: Company name (business name) ‘COMSA S.A.’ and unregistered mark ‘COMSA’

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: The appeals of the applicant and of the defendant upheld in part

Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009
EN Official Journal of the European Union C 184/17

Action brought on 11 April 2012 — European Dynamics Luxembourg and Evropaiki Dinamiki v Commission

(Case T-165/12)

2012/C 184/30

Language of the case: Greek

Parties

Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) and Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: V Christianos, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

— annul the European Commission decision CMS/cms D(2012)/00008 of 8 February 2012, which was communicated to the applicants on 9 February 2012, whereby the European Commission rejected the applicants’ tender in the closed tendering procedure EuropeAid/131431/C/SER/AL, and

— order the Commission to pay the entirety of the applicant’s costs.

Pleas in law and main arguments

By this action, the applicants seek the annulment of the European Commission decision CMS/cms D(2012)/00008 of 8 February 2012, which was communicated to the applicants on 9 February 2012, whereby the European Commission rejected the applicants’ tender in the closed tendering procedure EuropeAid/131431/C/SER/AL.

The applicants claim that the contested decision should be annulled, in accordance with Article 263 TFEU, because of contravention of the rules of European Union law and, in particular, on the following three grounds:

1. First, because of the infringement by the Commission of the principle of transparency, since the contested decision, even after the Commission’s letter of 21 February 2012, did not allow the tenderers to have access to the record of the Commission’s assessment.
EN Official Journal of the European Union C 109/25

Action brought on 10 February 2012 — Sina Bank v Council

(Case T-67/12)

2012/C 109/53

Language of the case: English

Parties

Applicant: Sina Bank (Teheran, Iran) (represented by: B. Mettetal and C. Wucher-North, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul point 8 of table B of Annex VIII to Regulation (EU) 961/2010 amended, as set out in the Annex to Council Implementing Regulation 1245/2011 (1) insofar as the applicant is concerned;

— Annul point 8 of table B of Annex II to Council Decision 2010/413/CFSP amended, as set out in the Annex to Council Decision 783/2011/CFSP (2), insofar as it relates to the applicant;

— Annul Article 16(2) of Regulation (EU) 961/2010 that Regulation 1245/2011 implements, insofar as the applicant is concerned;

— Annul Article 19(1)(b) of Decision 2010/413/CFSP that Decision 783/2011/CFSP amends, insofar as the applicant is concerned;

— Annul the letter — decision dated 5 December 2011; and

— Order the defendant to pay the costs incurred by the present action.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1. First plea in law, alleging — that the applicant is not linked to the interests of the ‘Daftar’ and does not contribute to the financing of the so-called ‘regime’s’ strategic interests, nor its alleged nuclear programme. Accordingly, the substantive criteria for designation under Decision 2010/413/CFSP, which Decision 783/2011/CFSP amends and by which the Council maintains the name of the applicant on those lists, are not met in respect of the applicant, thus the Council committed a manifest error of assessment in determining whether or not those criteria were met. Furthermore, the Council also failed to apply the relevant test correctly;

2. Second plea in law, alleging — that the designation of the applicant on the list breaches the fundamental principle of equal treatment;

3. Third plea in law, alleging — that by maintaining the applicant’s name on the list, the Council has breached the procedural requirements to give adequate reasons provided by Decision 2010/413/CFSP, which Decision 783/2011/CFSP amends and Regulation 1245/2011 implements, and by virtue of which the applicant remains on the lists; and further to respect the rights of defence and the right to effective judicial protection;

4. Fourth plea in law, alleging — that the designation of the applicant violates the applicant’s property rights and the principle of proportionality.

(1) Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ L 319, 2.12.2011, p. 11)

(2) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ L 319, 2.12.2011, p. 71)
EN Official Journal of the European Union C 109/29

Action brought on 17 February 2012 — Einhell Germany and Others v Commission

(Case T-73/12)

2012/C 109/59

Language of the case: English

Parties

Applicants: Einhell Germany AG (Landau an der Isar, Germany), Hans Einhell Nederlands BV (Breda, Netherlands), Einhell France SAS (Villepinte, France) and Hans Einhell Oesterreich GmbH (Vienna, Austria) (represented by: R. MacLean, Solicitor)

Defendant: European Commission

Form of order sought

— Declare the application admissible;

— Partially annul Article 1 of Commission Decision K(2011) 8831, Article 1 of Commission Decision C(2011) 8825, Article 1 of Commission Decision C(2011) 8828 and Article 1 of Commission Decision K(2011) 8810, all four decision being dated 6 December 2011, insofar as they only grant partial refunds of the anti-dumping duties paid by the applicants on imports of Chinese-made compressors applied under Council Regulation (EC) No 261/2008 imposing a definitive anti-dumping duty on certain compressors originating in the People’s Republic of China (OJ 2008 L 81, p. 1);

— Order maintenance in force of the contested decisions until the European Commission has adopted measures necessary to comply with any judgment of the Court; and

— Order the defendant to pay the legal costs and expenses of the procedure.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

1. First plea in law, alleging that the defendant committed a manifest error of assessment in applying an appropriate and reasonable unrelated EU importer profit margin for the purposes of establishing the revised dumping margin applicable to the imports in question, thereby failing to establish a reliable export price for the unrelated supplier when calculating the correct anti-dumping refund amounts leading to infringements of Articles 2(9) and 18(3) of Council Regulation (EC) No 1225/2009. (1)

2. Second plea in law, alleging that the defendant committed a manifest error of assessment by deducting anti-dumping duties as a cost in the calculation of the unrelated supplier’s export price thereby failing to establish a reliable dumping margin for the purpose of calculating the revised dumping margin and the correct anti-dumping refund amounts and in doing so violated Articles 2(9), 2(11) and 11(10) of Council Regulation (EC) No 1225/2009.

(1) Council Regulation (EC) 1225/2009 on Protection Against Dumped Imports From Countries not Members of the European Community, OJ 2009 L 343, p. 51.
EN Official Journal of the European Union C 118/30

Action brought on 20 February 2012 — Chico's Brands Investments v OHIM — Artsana (CHICO'S)

(Case T-83/12)

2012/C 118/51

Language in which the application was lodged: English

Parties

Applicant: Chico's Brands Investments, Inc. (Fort Myers, United States) (represented by: T. Holman, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Artsana SpA (Grandate, Italy)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 October 2011 in case R 2084/2010-1;

— Order the defendant to pay to the applicant, the applicant’s costs of and occasioned by this appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CHICO’S’, for goods and services in classes 25 and 35 — Community trade mark application No 1585579

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 420865 of the figurative mark ‘chicco’, for among others goods in class 25; Italian trade mark registration No 846672/380042 of the figurative mark ‘chicco’, for among others goods in class 25; International trade mark registration No 763084 of the figurative mark ‘chicco’, for among others goods in class 25

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 15(1)(a), 42(2) and (3) of Council Regulation No 207/2009, as the Board of Appeal erred in concluding that the opponent’s evidence proved genuine use of the earlier mark in Italy. Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in concluding that there was a likelihood of confusion between the CTM application and the earlier mark.
1.

First plea in law, alleging — that the substantive criteria for designation under the contested measures are not met in the applicant’s case since there is no legal or factual basis for his designation and that the Council committed a manifest error of assessment in this respect; furthermore that the Council designated the applicant on the basis of insufficient evidence; — that the applicant produced solid evidence in support of his positive claim and that he has in fact taken active steps to prevent pro-Government elements from accessing Kadmous Tansport’s fleet of buses. Whereas the Council failed to produce sufficient evidence to contest these statements.
2.

Second plea in law, alleging that there was no basis for including the applicant in the sanctions lists — The reasons given for including the applicant in the sanctions lists did not make it possible to identify the precise legal basis on which the Council acted. — An activity carried out by the applicant until only March 2008 cannot justify his inclusion in the sanctions lists in December 2011. — The applicant’s activity as manager of the Hanseatic Trade Trust & Shipping (HTTS) GmbH does not justify his inclusion in the sanctions lists, in particular because the General Court of the European Union annulled Regulation (EU) No 961/2010 (1) to the extent that it concerned HTTS GmbH. — The mere fact that the applicant was manager of an English company which has since been dissolved cannot constitute a reason under Article 23(2) of the contested regulation for including the applicant in the sanctions lists.
EN Official Journal of the European Union C 217/25

Action brought on 15 May 2012 — Vila Vita Hotel und Touristik v OHIM — Viavita (VIAVITA)

(Case T-204/12)

2012/C 217/53

Language in which the application was lodged: English

Parties

Applicant: Vila Vita Hotel und Touristik GmbH (Frankfurt, Germany) (represented by: G. Schoenen and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Viavita SASU (Paris, France)

Form of order sought

— Overturn the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in case R 419/2011-1;

— Order OHIM to bear the costs of the applicant; and

— In the event that the other party to the proceedings before the Board of Appeal joins in these proceedings as an intervening party, order it to bear its own costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘VIAVITA’, for services in classes 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 — Community trade mark application No 52201504

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

Mark or sign cited in opposition: Austrian trade mark registration No 154631 of the word mark ‘VILA VITA PARC’, for services in classes 39 and 42; German trade mark registration No 2097301 of the figurative mark ‘VILA VITA TOURISTIK GMBH’, for goods and services in classes 3, 35, 37, 39 et 41

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the opposition

Pleas in law: Infringement of Article 42(2) and (3) of Council Regulation No 207/2009.
—

Case-law and legislation impose a duty on the defendant to elaborate on the advantages of the selected tender clearly, instead of merely contesting the evidence the applicant brings forward; a good administration has to examine the truth of it and address the allegations correctly, all the more so when various aggravating factors intensify this requirement.
—

In consequence, annul Decision 2011/782/CFSP of 1 December 2011 and Regulation (EU) No 36/2012 of 18 January 2012 and their subsequent implementing acts, insofar as they concern the applicant;
EN Official Journal of the European Union C 217/26

Action brought on 22 May 2012 — Micrus Endovascular v OHIM — Laboratorios Delta (DELTA)

(Case T-218/12)

2012/C 217/55

Language in which the application was lodged: English

Parties

Applicant: Micrus Endovascular LLC (Wilmington, United States) (represented by: B. Brandreth, Barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Delta Lda (Queluz, Portugal)

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 6 March 2012 in case R 244/2011-2; and

— Order that the respondent pays the applicant its costs incurred before the Board of Appeal and the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘DELTA’, for goods in class 10 — Community trade mark application No 6655906

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 131374 of the figurative mark ‘DELTA PORTUGAL’, for goods in class 5; Portuguese trade mark registration No 140578 of the figurative mark ‘DELTA PORTUGAL’, for goods in class 5; Registered trade name No 23113 ‘LABORATORIOS DELTA’

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 217/27

Action brought on 4 June 2012 — Eni v Commission

(Case T-240/12)

2012/C 217/57

Language of the case: Italian

Parties

Applicant: Eni SpA (Rome, Italy) (represented by: G. Roberti and I. Perego, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Declare the action admissible;

— Annul the contested measure;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the letter (D/2012/042026) of 23 April 2012 concerning Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber — Re-adoption, by which the European Commission communicated to ENI its decision to recommence the BR-ESBR procedure following the judgment of the General Court of 13 July 2011 in Case T-39/07 Eni v Commission, which annulled in part Decision C(2006) 5700 of 29 November 2006 adopted in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber and reduced the fine imposed.

In support of the action, ENI relies on a single plea in law, alleging lack of competence, since the Commission cannot recommence the investigation procedure in Case BR-ESBR with a view to adopting a fresh decision imposing fines.

ENI submits that in its judgment of 13 July 2011, in addition to annulling in part the 2006 BR-ESBR decision, on the basis that the Commission had failed to make a correct assessment of the aggravating circumstance of repeated infringement, the General Court exercised its unlimited jurisdiction — under Article 261 TFEU and Regulation No 1/2003 — re-determining the amount of the fine and substituting its own assessment for that of the Commission. From that perspective, the decision to recommence the BR-ESBR procedure, as well as infringing the principle governing the attribution of powers and ensuring institutional balance referred to in Article 13 TFEU, is contrary to the fundamental right to fair legal process laid down in Article 6 ECHR and Article 47 of the Charter of Fundamental Rights and to the ne bis in idem principle embodied in Article 7 ECHR.

Moreover, ENI claims that, contrary to what is stated in the contested measure, the General Court did not merely establish a procedural defect in the Commission’s application of the concept of repeated infringement in the 2006 BR-ESBR decision; the Commission cannot, therefore, rely on the PVC II (1) case-law to justify its own action, which, also from that perspective, is contrary to Article 7 ECHR.

Lastly, having regard to the relevant case-law, ENI submits that in the circumstances of the present case any possibility of readopting a decision which once again applies the concept of repeated infringement and imposes a fine is, in any event, wholly precluded.

(1) Joined Cases C-238/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P Limburgse Vinyl Maatschappij NV (LVM) and Others v Commission (PVV II) [2002] ECR I-8375.
EN Official Journal of the European Union C 243/24

Action brought on 29 May 2012 — Airbus v OHIM (NEO)

(Case T-236/12)

2012/C 243/42

Language of the case: English

Parties

Applicant: Airbus SAS (France) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

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 February 2012 in case R 1387/2011-1;

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘NEO’ for goods and services in classes 7, 12, and 39 — Community trade mark application No 9624974

Decision of the Examiner: Partially refused to register the community trade mark application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

— Infringement of Articles 64(1) and 59 of Council Regulation No 207/2009;

— Infringement of Articles 7(1)(b), 7(1)(c) and 7(2) of Council Regulation No 207/2009; and
EN Official Journal of the European Union C 217/28

Action brought on 12 June 2012 — Mederer v OHIM — Katjes Fassin (SOCCER GUMS)

(Case T-258/12)

2012/C 217/60

Language in which the application was lodged: German

Parties

Applicant: Mederer GmbH (Fürth, Germany) (represented by: O. Ruhl and C. Sachs, lawyers)

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

Other party to the proceedings before the Board of Appeal: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of 10 April 2012 in Case R 225/2011-4;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Katjes Fassin GmbH & Co. KG to pay the costs of the opposition proceedings, the appeal proceedings and the proceedings before the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘SOCCER GUMS’ for goods in Class 30 — Community trade mark application No 8 629 446

Proprietor of the mark or sign cited in the opposition proceedings: Katjes Fassin GmbH & Co. KG

Mark or sign cited in opposition: the national word mark ‘SOCCER STAR’ for goods in Class 30

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

— Infringement of Article 76(1) of Regulation No 207/2009;
1.

First plea in law, alleging infringement of Article 107(1) TFEU The applicant claims that the municipality of Vänersborg did not grant unlawful aid to the applicant within the meaning of Article 107(1) TFEU by selling and letting publicly owned property below the property’s market value. In the applicant’s submission, the Commission made a series of incorrect assessments as regards the legal classification of the alleged State aid measures in that: — the Commission did not have regard to the fact that the purchase of the installation at an earlier stage for SEK 17 million could constitute State aid; — the Commission failed to take into account that the actual sale price of SEK 8 million was in accordance with the installation’s market value; — the Commission disregarded the principle of a private investor in a market economy, by fixing the value at a later stage at different value time points as the basis of its decision before the actual sale to a private investor; — the so-called ‘third estimate in the PwC report’ at the value time point of March 2008 did not constitute a reliable indicator of the true market value of the installation, and — the Commission did not have regard to the fact that the installation was quite simply sold at a later stage for SEK 8 million in May 2011 after an open bidding procedure as part of the new owners’ insolvency.
—

Annul Article 1(2), (3), (4), (6), (12) and (13), Annexes I and II, and Article 2(1) to (3), in conjunction with Article 3, of Commission Implementing Regulation (EU) No 302/2012 of 4 April 2012 amending Implementing Regulation (EU) No 543/2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ L 99 of 5.4.2012, p. 21);