ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 379/26

Action brought on 8 October 2012 — Koscher + Würtz v OHIM — Kirchner & Wilhelm (KW SURGICAL INSTRUMENTS)

(Case T-445/12)

2012/C 379/45

Language in which the application was lodged: German

Parties

Applicant: Koscher + Würtz GmbH (Spaichingen, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt, M. Bergermann, J. Vogtmeier and A. Kramer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Kirchner & Wilhelm GmbH + Co (Asperg, 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 6 August 2012 in Case R 1675/2011-4;

— order the defendant to pay the costs of the proceedings, including the costs incurred in the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Koscher + Würtz GmbH

Community trade mark concerned: International registration with protection in respect of the European Union of a figurative mark containing the word element ‘KW SURGICAL ELEMENTS’ for goods in Class 10 — International registration with protection in respect of the European Union No W 968 722

Proprietor of the mark or sign cited in the opposition proceedings: Kirchner & Wilhelm GmbH + Co

Mark or sign cited in opposition: National word mark ‘Ka We’ for goods in Class 10

Decision of the Opposition Division: Opposition refused

Decision of the Board of Appeal: Appeal allowed and protection denied in respect of the trade mark registration

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 26/53

Action brought on 5 November 2012 — Nestlé Unternehmungen Deutschland v OHIM — Lotte (LOTTE)

(Case T-483/12)

2013/C 26/107

Language in which the application was lodged: German

Parties

Applicant: Nestlé Unternehmungen Deutschland GmbH (Frankfurt am Main, Germany) (represented by: A. Jaeger-Lenz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Lotte Co. Ltd (Tokyo, Japan)

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 3 September 2012 in case R 2103/2010-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Lotte Co. Ltd

Community trade mark concerned: Figurative mark containing the word element ‘LOTTE’ and an image of a koala on a tree, holding a smaller koala, for goods in Class 30 — Community trade mark application 6 158 463

Proprietor of the mark or sign cited in the opposition proceedings: Nestlé Unternehmungen Deutschland GmbH

Mark or sign cited in opposition: National figurative marks containing the word elements ‘KOALA BÄREN’ and ‘KOALA’ and an image of a koala holding a smaller koala, for goods in Class 30

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal granted; decision of the Opposition Division annulled

Pleas in law: Infringement of Article 42(2) and (3) of Regulation No 207/2009, Rule 22(2) of Regulation No 2868/95 and Article 15(1) of Regulation No 207/2009
EN Official Journal of the European Union C 389/7

Action brought on 23 October 2012 — RFA International v Commission

(Case T-466/12)

2012/C 389/12

Language of the case: English

Parties

Applicant: RFA International, LP (Calgary, Canada) (represented by: B. Evtimov, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul partially Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012, insofar as they refuse to reimburse the amounts of anti-dumping duties applied for, save for those amounts, the applications for which had been found inadmissible as lodged after the expiry of a statutory time limit;

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

Pleas in law and main arguments

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

1. First plea in law, alleging — an error in law and manifest error of assessment in the Commission’s finding that a full deduction for SG&A and profit from the export price of the CHEMK Group was warranted, and in the Commission’s related finding that a single economic entity is irrelevant for the calculation of export price (including adjustments to export price) pursuant to Article 2(9) of the Basic Regulation (1). To the extent the Commission may have relied on the rejection of the applicant’s claim of existence of a single economic entity, the applicant contends that such rejection is also vitiated by an error in law and/or a manifest error of assessment.

2. Second plea in law, alleging — a manifest error of assessment in the Commission’s finding that there was a changed circumstance in the sense of Article 11(9) of the Basic Regulation, which warranted the application of a different methodology for the calculation of the final dumping margin. The applicant also invokes a consequential breach of Article 11(9) of the Basic Regulation in the Commission’s application of the new methodology, which is different from the respective methodology used in the original investigation.

(1) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51)
EN Official Journal of the European Union C 26/64

Action brought on 19 November 2012 — Automobile Association v OHIM — Duncan Petersen Publishing (Folders)

(Case T-508/12)

2013/C 26/126

Language in which the application was lodged: English

Parties

Applicant: The Automobile Association Ltd (St. Helier, United Kingdom) (represented by: N. Walker, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Duncan Petersen Publishing Ltd (London, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 September 2012 in case R 172/2011-3, and remit the matter back to OHIM for reconsideration; and.

— Order OHIM to pay the costs of the applicant.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: A design for the product ‘folders’ — registered Community design No 1121404-0001

Proprietor of the Community design: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community design: The applicant

Grounds for the application for a declaration of invalidity: The applicant requested the invalidity of the RCD based on Articles 4 to 9 of Council Regulation No 6/2002

Decision of the Invalidity Division: Rejected the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

— Infringement of Article 8 of Council Regulation No 6/2002;

— Infringement of Article 8(2) in conjunction with Article 62 of Council Regulation No 6/2002; and
2.

Second plea in law, alleging insufficient reasoning for the finding that the applicants obtained an advantage The applicants argue in relation to this plea that the Commission infringed the duty to state reasons contained in Article 296(2) TFEU by failing to explain adequately its finding that the applicants had received indirect aid or the reasons why the valuation of HSH Nordbank had been incorrectly determined. In addition, the Commission did not provide a figure for the level of the supposed aid to the minority shareholders and mixed up the examination of that aid with the examination of the burden-sharing.
—

set aside the judgment of the Civil Service Tribunal of the European Union of 25 September 2012 in Case F-51/10 in so far as (i) it rejects as inadmissible the forms of order seeking the annulment of all of the decisions adopted on the basis of EESC vacancy notice No 43/09, (ii) it does not give judgment on the forms of order seeking that the respondent be ordered to pay EUR 1 000 in damages, and (iii) does not give judgment on the substantive pleas raised in support of his first form of order seeking the annulment of EESC vacancy notice No 43/09;
—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in case R 1017/2012-4 of 12 September 2012 and refer the case back to the Board of Appeal;
—

Annul Council Implementing Regulation No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures against Belarus, insofar as it concerns the applicant;
1.

First, the applicant maintains that the contested actions of Cedefop lack adequate reasons and infringe the applicant’s rights of defence and right to effective protection, since, on the basis of the content of the contested award decision and the written documents provided in response to the applicant’s request, it is impossible to come to any definitive conclusion as to how the evaluation was carried out and ultimately how the tenders were ranked and, consequently, the grounds of the final decision of the defendant Cedefop were not adequately stated, in accordance with Article 296 TFEU and Article 41(2) of Directive 2004/18 ΕΚ, (1) and the applicant was not informed of the particular characteristics and relative advantages of the selected tender by comparison with his own tender; further the applicant has never been informed of the factors which were the basis of the evaluation committee’s final decision in relation to the contested procedure for the award of the contract for the provision of medical services to Cedefop staff, notwithstanding the submission of an application therefor and a confirmatory application therefor.
EN Official Journal of the European Union C 55/23

Action brought on 28 December 2012 — Pyrox v OHIM — Köb Holzheizsysteme (PYROX)

(Case T-575/12)

2013/C 55/41

Language in which the application was lodged: German

Parties

Applicant: Pyrox GmbH (Oberhausen, Germany) (represented by: T. Eigen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Köb Holzheizsysteme GmbH (Wolfurt/Vorarlberg, Austria)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 October 2012 in joined Cases R 2187/2011-1 and R 2507/2011-1;

— Order the defendant to pay the costs including those incurred in the proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the figurative mark which includes the word element ‘PYROX’, for goods in Classes 4, 7 and 11 — Community trade mark application No 8 612 781

Proprietor of the mark or sign cited in the opposition proceedings: Köb Holzheizsysteme GmbH

Mark or sign cited in opposition: the national word mark ‘PYROT’ for goods in Class 11

Decision of the Opposition Division: the opposition was upheld in part

Decision of the Board of Appeal: the contested decision was annulled in part and the application was rejected in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 86/19

Action brought on 3 January 2013 — Seal Trademarks/OHIM — Exel Composites (XCEL)

(Case T-14/13)

2013/C 86/32

Language in which the application was lodged: English

Parties

Applicant: Seal Trademarks Pty Ltd (Queensland, Australia) (represented by: E. Armijo Chávarri, lawyer)

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

Other party to the proceedings before the Board of Appeal: Exel Composites Oyj (Mäntyharju, Finland)

Form of order sought

The applicant claims that the Court should:

— Annul the Second Board of Appeal’s Decision of 11 October 2012 or;

— Subsidiarily, modify it, because it goes contrary to Articles 42, paragraphs 2 and 3, and 8, paragraph 1, letter b) of the CTMR (expressly sentencing OHIM to court fees).

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘XCEL’ for goods in classes 18, 25 and 28 — Community trade mark registration No 3 809 571

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: Community trade mark registration No 2 996 891, Austrian trade mark registration No 149 726 and Swedish trade mark registration No 324 307 of the word mark ‘EXEL’ for goods in classes 18 and 28

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 42(2) and (3) and 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 79/26

Action brought on 23 January 2013 — ECC Couture v OHIM — Ball Wholesale (Culture)

(Case T-28/13)

2013/C 79/45

Language in which the application was lodged: Dutch

Parties

Applicant: ECC Couture BV (Oldenzaal, Netherlands) (represented by: M.A.S.M. van Leent and I. de Jonge, lawyers)

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

Other party to the proceedings before the Board of Appeal: Ball Wholesale ApS (Billund, Denmark)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 October 2012 in Case R 290/2012-1 in so far as the applicant has been unsuccessful under that decision and in so far as the applicant is ordered to pay the costs;

— declare that Community Trade Mark No 993 511 in respect of the figurative mark ‘Culture’ is valid for all goods and services that were the subject of the procedure before the Board of Appeal;

— order OHIM to pay all the costs of the proceedings in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: International registration designating the European Union of figurative mark ‘Culture’ for goods in Classes 14, 18 and 25 — Community trade mark No 993 511

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: Ball Wholesale ApS

Grounds for the application for a declaration of invalidity: National word mark ‘CULTURE’ for goods in Classes 14, 25 and 26

Decision of the Cancellation Division: Application refused

Decision of the Board of Appeal: Appeal allowed in part

Pleas in law: Infringement of Article 8(1)(b) and Article 8(2)(c) of Regulation No 207/2009
EN Official Journal of the European Union C 101/19

Action brought on 16 January 2013 — Senz Technologies/OHIM — Impliva (Umbrellas)

(Case T-22/13)

2013/C 101/41

Language in which the application was lodged: English

Parties

Applicant: Senz Technologies BV (Delft, Netherlands) (represented by: W. Hoyng and C. Zeri, lawyers)

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

Other party to the proceedings before the Board of Appeal: Impliva BV (Amsterdam, Netherlands)

Form of order sought

The applicant claims that the Court should:

— To annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) dated 26 September 2012 in Case R 2453/2010-3;

— Uphold the arguments put forward before the General Court and declare the registration of the Registered Community Design with no. 000579032-0001 to be valid;

— Order the Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade design in respect of which a declaration of invalidity has been sought: The trade design ‘Umbrellas’ — Registered Community design No 000579032-0001

Proprietor of the Community trade design: The applicant

Applicant for the declaration of invalidity of the Community trade design: Impliva BV

Grounds for the application for a declaration of invalidity: The application for a declaration of invalidity was based on Articles 4 and 9 Council Regulation No 6/2002

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1) and Articles 6 in connection with 25 (1)(b) of Council Regulation No 6/2002.
EN Official Journal of the European Union C 101/24

Action brought on 1 February 2013 — Novartis Europharm v Commission

(Case T-67/13)

2013/C 101/53

Language of the case: English

Parties

Applicant: Novartis Europharm Ltd (Horsham, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the European Commission C(2012) 8605 final of 19 November 2012 to grant a marketing authorisation to Hospira UK ltd, in accordance with Article 3 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1); and

— Order the European Commission to pay its own costs and those of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the contested decision is unlawful in that it constitutes an infringement of the data protection rights of Novartis Europharm Ltd. for its product Aclasta pursuant to Articles 13(4) of Regulation (EC) No. 2309/93 (1), read in conjunction with Article 89 of Regulation (EC) No. 726/2004 (2). As Aclasta was granted a separate independent marketing authorisation through the centralised procedure the Aclasta authorisation does not fall under the same global marketing authorisation as Zometa (another product of Novartis Europharm Ltd) specified in article 6(1) of Directive 2001/83 (3) for the purposes of data protection.

In addition, the contested Decision is also unlawful in that it constitutes an infringement of Article 10(1) of Directive 2001/83/EC as data protection for the reference medicinal product Aclasta has not expired and hence the conditions for granting a marketing authorisation under this article have not been complied with.

(1) Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products

(2) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (Text with EEA relevance)

(3) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use
EN Official Journal of the European Union C 79/31

Action brought on 29 January 2013 — Donnici v Parliament

(Case T-43/13)

2013/C 79/52

Language of the case: Italian

Parties

Applicant: Beniamino Donnici (Castrolibero, Italy) (represented by: V. Vallefuoco and J. Van Gyseghem, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should find serious fault on the part of the European Parliament in relation to its decision adopted on 24 May 2007 to the applicant’s disadvantage, subsequently annulled by the judgment of the Court of Justice of 30 April 2009 and, thus, order the European Parliament to make good the material and non-material damage suffered or to be suffered by him as a result of that unlawful measure, even on an equitable basis which amounts to EUR 1 720 470, or in such lesser amount as the Court considers appropriate. The applicant claims that the European Parliament should pay the costs.

Pleas in law and main arguments

The applicant in the present proceedings — who is also the applicant in Cases T-215/07 and C-9/08 Donnici v Parliament — seeks compensation for the damage suffered as a result of the defendant’s refusal to recognise the validity of his mandate as a member of the European Parliament. That decision was subsequently annulled by the Court of Justice of the European Union.

In support of his action, the applicant submits that in the present case all the conditions established by the case-law for a declaration that the institutions of the European Union are non-contractually liable are satisfied; this applies in particular to:

— the unlawfulness of the conduct alleged;

— the requirement for the damage to be real;

— the existence of a causal link, and
EN Official Journal of the European Union C 123/17

Action brought on 14 February 2013 — K-Swiss/OHIM — Künzli SwissSchuh (Trainer with five stripes)

(Case T-85/13)

2013/C 123/28

Language in which the application was lodged: English

Parties

Applicant: K-Swiss, Inc. (California, United States) (represented by: R. Niebel and K. Tasma, lawyers)

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

Other party to the proceedings before the Board of Appeal: Künzli SwissSchuh AG (Windisch, Switzerland)

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), dated 30 October 2012 in Case R 174/2011-2; and

— Order the defendant and, as appropriate, the intervener to bear the coasts of the action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a trainer with five stripes — Community trade mark registration No 4 771 978

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 grounds of the request for a declaration of invalidity were those laid down in Article 52(1)(a) in conjunction with Article 7(1)(b) of Council Regulation No 207/2009

Decision of the Cancellation Division: Declared the contested Community trade mark invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 207/2009.
1.

First plea in law, alleging that the defendant committed a manifest error of fact and assessment in deciding to apply these restrictive measures to the applicant and in considering that any of the criteria for listing were fulfilled.