ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 285/45

Action brought on 25 August 2008 — Matratzen Concord v OHIM — Barranco Schnitzler and Barranco Rodriguez (MATRATZEN CONCORD)

(Case T-351/08)

(2008/C 285/84)

Language in which the application was lodged: German

Parties

Applicant: Matratzen Concord GmbH (Cologne, Germany) (represented by: J. Albrecht, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Pablo Barranco Schnitzler (Sant Just Desvern, Spain) and Mariano Barranco Rodriguez (Sant Just Desvern)

Form of order sought

— annul the decision of the Second Board of Appeal of OHIM of 30 May 2008 (Case R 1034/2007-2);

— order OHIM to pay the costs, including those of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative mark ‘MATRATZEN CONCORD’ for goods in Classes 10, 20 and 24 (Application No 3 355 369)

Proprietors of the mark or sign cited in the opposition proceedings: Pablo Barranco Schnitzler and Mariano Barranco Rodriguez

Mark or sign cited in opposition: national word mark ‘MATRATZEN’ for goods in Class 20

Decision of the Opposition Division: Refusal of the application for a Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, in that there is no likelihood of confusion between the conflicting marks, and infringement of Article 43(2) of that regulation, in that no proof has been provided of genuine use of the mark cited in opposition.
EN Official Journal of the European Union C 301/59

Action brought on 6 October 2008 — Grand Hotel Abi d'Oru v Commission

(Case T-454/08)

(2008/C 301/98)

Language of the case: Italian

Parties

Applicant: Grand Hotel Abi d'Oru SpA (Olbia, Italy) (represented by: D. Dodaro and S. Cianciullo, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— Annul the Decision in so far as it: (a) states that ‘[t]he [S]tate aid granted in accordance with Regional Act No 9 of 1998, unlawfully put into effect by Italy in Resolution (deliberazione) No 33/6 and in the first call for applications, is incompatible with the common market unless the recipient of the aid submitted an application for aid under the scheme before starting work on an initial investment project’ (Article 1 of the Decision); (b) orders that ‘[t]he Italian Republic shall recover the incompatible aid granted under the scheme referred to in Article 1 from the recipients’ (Article 2(1) of the Decision); (c) orders that ‘[t]he The Italian Republic shall cancel all outstanding payments of aid under the scheme referred to in Article 1 with effect from the date of adoption of this Decision’ (Article 2(4) of the Decision).

— Order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The contested decision in the present case is the same as that at issue in Case T-394/08 Regione Sardegna v Commission, Case T-408/08 S.F. Turistico Immobiliare v Council and Commission and Case T-436/08 Studio Vacanze v Commission.

The pleas in law and main arguments are similar to those put forward in those cases.
EN Official Journal of the European Union C 301/50

Action brought on 16 September 2008 — Lemans v OHIM — Turner (ICON)

(Case T-389/08)

(2008/C 301/84)

Language in which the application was lodged: English

Parties

Applicant: Lemans Corporation (Janesville, United States) (represented by: M. Cover, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Stephen Turner (Luddington, United Kingdom)

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 3 July 2008 in case R 778/2007-2;

— A declaration that the opposition be dismissed and that Community trade mark concerned may proceed to registration; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs, including the appeals before the Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ICON’ for goods and services in classes 9, 18 and 25 — application No 2 197 440

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: The national word mark ‘IKON’ for goods in class 9 — UK trade mark registration No 2 243 676

Decision of the Opposition Division: Rejection of the application in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its finding that the other party to the proceedings before it had locus standi to file the opposition.
EN Official Journal of the European Union C 313/42

Action brought on 29 September 2008 — LATGA-A v Commission

(Case T-419/08)

(2008/C 313/76)

Language of the case: English

Parties

Applicant: Lietuvos Autorių Teisių Gynimo Asociacijos Agentūra (LATGA-A) (Vilnius, Lithuania) (represented by: M. Favart, lawyer)

Defendant: Commission of the European communities

Form of order sought

— Annul Article 3 of the Commission decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38.698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 — CISAC) relating to a proceeding under Article 81 EC and Article 53 EEA. Precisely, the applicant contests the Commission findings in Article 3 of the contested decision stating that territorial delineations of the reciprocal representation mandates granted by one authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The pleas in law and main arguments raised by the applicant are identical to those raised by the applicant in Case T-415/08 IMRO v Commission.
EN Official Journal of the European Union C 301/47

Action brought on 11 September 2008 — New Europe v Commission

(Case T-383/08)

(2008/C 301/81)

Language of the case: English

Parties

Applicant: New Europe (Brussels, Belgium) (represented by: A.-M. Alamanou, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the Commission decision in the form of a letter dated 2 July 2008 and received by the applicant on the same day, refusing to the latter access to the names of the companies and the individuals cited in the documents disclosed by the Commission; and

— Order that the costs of, and occasioned by these proceedings be borne by the respondent.

Pleas in law and main arguments

By way of the present application, the applicant challenges the Commission decision notified to the latter by letter dated 2 July 2008 by which the Commission refused to disclose the names of the companies and of the individuals involved in the so-called ‘Eximo’ case which are cited in the documents disclosed to the applicant by the Commission in reply to its initial application.

The applicant seeks to annul the contested decision on the basis of the following grounds:

First, according to the applicant, the contested decision is vitiated by a manifest error of law in so far as the Commission wrongly interpreted and relied on the exceptions provided in Article 4(1)(b), 4(2) first indent of Regulation (EC) No 1049/2001 (1) without carrying out an assessment of fact or setting out the reasons for its refusal. In addition, the applicant submits that the Commission made an error of appreciation of the facts in finding that the commercial interests of the companies concerned and the privacy and the integrity of the individuals involved would have been seriously undermined should their names be disclosed. Furthermore, the applicant contends that, by opting for an extensive interpretation of the term ‘protection of commercial interests’ and ‘protection of privacy and integrity of the individual’, the Commission violated the principle of the widest possible access to documents as set out in Article 1(a) of Regulation (EC) No 1049/2001.

Second, the applicant submits that the contested decision infringed Article 4(4) of Regulation (EC) No 1049/2001 in so far as the Commission failed to grant the applicant full access to a document which was already publicly available.

Third, the applicant submits that the Commission violated the obligation to state reasons in accordance with Article 253 EC, by failing to inform the applicant on the grounds on which it based its decision and by simply referring to the exceptions set out in Article 4(4) of Regulation (EC) No 1049/2001.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 313/44

Action brought on 24 September 2008 — CEAHR v Commission

(Case T-427/08)

(2008/C 313/80)

Language of the case: English

Parties

Applicant: Confédération Européenne des Associations d'Horlogers-Réparateurs (CEAHR) (Brussels, Belgium) (represented by: P. Mathijsen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision SG-Greffe(2008) D/204448 of 10 July 2008;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of Commission Decision SG-Greffe(2008) D/204448 of 10 July 2008 by which the Commission rejected, for lack of Community interest, the applicant's complaint regarding the alleged violations of Article 81 and 82 EC in connection with the watch manufacturers' refusal to supply spare parts to independent watch repairers [Case C(2008) 3600].

In support of its claims the applicant argues that the Commission infringed the Treaty by deforming the applicant's complaint and thus, using materially incorrect facts in its decision.

Furthermore, the applicant submits that the Commission committed errors in law and infringed Articles 81 and 82 EC by deciding that the watch manufacturers complained of didn't held a dominant position and that their refusal to sell spare parts outside the selective distribution system didn't constitute an abuse of their dominant position. The applicant also contests the Commission's conclusions that there were agreements or concerted practices between watch manufacturers.

The applicant contends that the Commission misused its power by using the argument of lack of Community interest after a four-year investigation of the applicant's complaint.

Moreover, the applicant claims that the Commission failed to state reasons thereby infringing Article 253 EC.

Finally, in the applicant's opinion, the Commission infringed the principle of impartiality in investigating its complaint.
EN Official Journal of the European Union C 313/48

Action brought on 3 October 2008 — Tokita Management Service v OHIM — Eminent Food (TOMATOBERRY)

(Case T-435/08)

(2008/C 313/86)

Language in which the application was lodged: English

Parties

Applicant: Tokita Management Service Corp. (Saitama, Japan) (represented by: P. Brownlow and N. Jenkins, Solicitors and A. Bryson, Barrister)

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

Other party to the proceedings before the Board of Appeal: Eminent Food BV (Bussum, Netherlands)

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 July 2008 in case R 1219/2007-4; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TOMATOBERRY’ for goods in class 31 — application No 3 797 909

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: Community trade mark registration No 3 344 711 of the figurative mark ‘Tomberry’ for goods and services in classes 31, 35 and 44

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade marks concerned are highly similar visually and conceptually; infringement of Article 8(1)(a) and/or Article 73 and/or Article 74(1) of Council Regulation No 40/94 as the Board of Appeal erred in its conclusion that the Opposition Division's finding that the opposition must be upheld on the ground of Article 8(1)(a) of Council Regulation No 40/94 was correct.
EN Official Journal of the European Union C 327/38

Action brought on 13 October 2008 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI)

(Case T-462/08)

(2008/C 327/67)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, 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: Alcon, Inc. (Hünenberg, Switzerland)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of 17 July 2008 (R 1471/2007-1) and the decision of the Opposition Division of OHIM of 16 July 2007 (B 809 899);

— Reject the Community trade mark application No 003679181 ‘Oftal Cusi’;

— Order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì, S.A (subsequently, Alcon, Inc.)

Community trade mark applied for: the word mark ‘OFTAL CUSI’ for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings: Winzer Pharma

Mark or sign cited in opposition:‘Ophtal’ (No 489 948) for goods in Class 5.

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 (EC) No 40/1994 (1) in that on account of their similarity there is a likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 327/32

Action brought on 30 September 2008 — KODA v Commission

(Case T-425/08)

(2008/C 327/59)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark) (represented by: K. Dyrekjær and J. Borum)

Defendant: Commission of the European Communities

Forms of order sought

— Annul Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety, or

— in the alternative, annul Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety in so far as it concerns KODA, or

— annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in so far as it concerns KODA, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of Commission Decision COMP/C2/38.698 — CISAC of 16 July 2008 in so far as it concerns transmission by cable, and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case is seeking annulment of Commission Decision C(2008) 3435 final of 16 July 2008 in Case COMP/C2/38.698 — CISAC, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 EEA through its reciprocal representation agreements or in practice had introduced membership restrictions (Article 1) and exclusivity clauses (Article 2) and, by having concerted territorial restrictions in such a manner as to limit a licence to each collecting society's national territory through the licensing of rights to public transmission of music over the Internet, via satellite and cable (Article 3).

In support of its claims, the applicant has put forward the following:

— the contested decision is vitiated by an essential procedural defect in that the statement of objections differs from the final decision on a central point;

— the contested decision is based on an incorrect application of the law, in that: (i) it has not been established that the applicant's inclusion of territorial restrictions in its reciprocal agreements for the Internet, satellite or cable are the result of a concerted practice with the other EEA collecting societies, and (ii) the territorial restrictions are not anti-competitive.

In the alternative, the applicant submits that no infringement has been demonstrated in the contested decision in so far as regards the licensing of rights via cable transmission.
EN Official Journal of the European Union C 6/35

Action brought on 9 October 2008 — Wilfer v OHIM

(Case T-458/08)

(2009/C 6/71)

Language in which the application was lodged: German

Parties

Applicant: Hans-Peter Wilfer (Markneukirchen, Germany) (represented by A. Kockläuner, 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 of 25 July 2008 in Case R 78/2007-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing the head of a guitar using the colours silver, grey and brown, for goods in Classes 9 and 15 (No 2 639 821)

Decision of the Examiner: Rejection of the registration

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law:

— infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1);

— infringement of the principle of examination of the facts by the Office of its own motion, including disregard for the rules concerning the burden of proof under Article 74(1) of Regulation No 40/94;

— infringement of the requirement to state reasons for the purposes of the first sentence of Article 73 of Regulation No 40/94;

— infringement of the principle of equal treatment.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
—

Declaration that the letter from the Directorate General of Competition of the European Commission D/53778 [COMP/H4/NM/ed D(2008) 247], of 2 October 2008, is null and void, in so far as it requires the interest referred to in Decisions 2003/27/EC and 2002/806/EC, of 11 July 2001 (infringement file 2007/2215), to be recovered on a compound basis; and
EN Official Journal of the European Union C 44/60

Action brought on 16 December 2008 — Luxembourg v Commission

(Case T-549/08)

(2009/C 44/103)

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: M. Fisch, agent and P. Kinsch, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decisions;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks the annulment of Commission Decision C(2008) 5383 of 24 September 2008 on the suspension of interim payments from the European Social Fund (ESF) to the single programming document for Community structural interventions falling under Objective No 3 to the Grand Duchy of Luxembourg, and Commission Decision C(2008) 5730 of 6 October 2008 on the suspension of interim payments from the Community initiative to combat discrimination and inequality in the employment market (EQUAL) to the Grand Duchy of Luxembourg.

In support of its action, the applicant raises three pleas in law:

— an infringement of the principle of protection of legitimate expectations, in so far as the Commission concluded, when two preventive audits of the Luxembourg system of management and monitoring were carried out prior to the programming period concerned, that that system provided sufficient safeguards of compliance with the current rules and the generally accepted criteria of good management; only when an audit was carried out after expiry of the programming period concerned did the Commission come to unfavourable conclusions about the system of management and monitoring;

— an incorrect interpretation of the regulatory provisions on which the contested decisions are based (1), since those provisions do not preclude, contrary to what Commission has claimed, (i) the managing authority and the payment authority belonging to the same institution and (ii) the national managing authority submitting to the Commission a statement of expenditure as to which doubt may well exist, but which at the time of statement has not been proved to merit being legally classified as ineligible;

— substantive inaccuracy in some of the facts on which the contested decisions are based as to record keeping by the managing authority.

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1) and Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21).
EN Official Journal of the European Union C 32/42

Action brought on 14 November 2008 — Ryanair/Commission

(Case T-497/08)

(2009/C 32/81)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, I. Metaxas-Maragkidis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare in accordance with Articles 230 and 231 EC that the Commission's implied decision refusing access to the documents for which access was requested by the applicant in an application dated 25 June 2008 is void;

— order the Commission to pay the costs incurred by the applicant in the proceedings; and

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of this application the applicant seeks annulment of the Commission implied decision rejecting the applicant's request, pursuant to Regulation No 1049/2001 (1), of the access to documents relating to State aid procedures concerning the presumed State aid granted through an agreement with the operator of Frankfurt Hahn airport.

The pleas in law and main arguments relied on by the applicant are similar to those relied on in Case T-494/08 Ryanair v Commission.

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