ddrg/super_eurlex huggingface dataset:
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Annul Decision C(2011) 4376 final of 29 June 2011, State aid NN 10/2010 — France — Tax to finance a national pig and pork producers council (not yet published in the Official Journal of the European Union) in so far as it classifies (i) as State aid the action taken by INAPORC between 2004 and 2008 in relation to technical support, assistance with the production and marketing of quality products, research and development, as well as advertising, and (ii) the compulsory voluntary contributions used to finance that action as State resources forming an integral part of the State aid measures referred to above;
Official Journal of the European Union

Action brought on 9 November 2011 — Dimian v OHIM — Bayer Design Fritz Bayer (BABY BAMBOLINA)

(Case T-581/11)

(2012/C 25/112)

Language in which the application was lodged: English

Parties

Applicant: Dimian AG (Nürnberg, Germany) (represented by: P. Pozzi and G. Ghisletti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Bayer Design Fritz Bayer GmbH & Co. KG (Michelau, Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2011 in case R 1822/2010-2; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘BABY BAMBOLINA’, for goods in class 28 — Community trade mark registration No 6403927

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Article 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009, and in Article 53(1)(a) in conjunction with Article 8(1)(b) and Article 8(2)(c) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 53(1)(c) and Article 8(4) and in conjunction of Council Regulation No 207/2009, to the extent that the Board of Appeal has excluded the relevance of the mentioned catalogues referring to the period 2008-2009.
EN Official Journal of the European Union C 32/38

Action brought on 30 November 2011 — PICO Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE)

(Case T-623/11)

2012/C 32/75

Language in which the application was lodged: English

Parties

Applicant: PICO Food GmbH (Tamm, Germany) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bogumit Sobieraj (Milanówek, Poland)

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 8 September 2011 in case R 553/2010-1;

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

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 figurative mark ‘MILANÓWEK CREAM FUDGE’, for goods in class 30 — Community trade mark application No 6342455

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

Mark or sign cited in opposition: German trade mark registration No 30522224 of the figurative mark representing a cow, for goods in class 30; German trade mark registration No 30523439 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702751 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702748 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30700574 of the figurative mark ‘SAHNE TOFFEE LUXURY CREAM FUDGE’, for goods in class 30

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 Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal misinterpreted the general principles laid down by the European Courts and denied the existence of likelihood of confusion between the opposition trademarks and the contested application. Infringement of Article 76(1) of Council Regulation No 207/2009, as the Board of Appeal based the decision on facts which have not been forwarded by the parties to the proceedings.
EN Official Journal of the European Union C 32/40

Action brought on 8 December 2011 — Guangdong Kito Ceramics and Others v Council

(Case T-633/11)

2012/C 32/79

Language of the case: English

Parties

Applicants: Guangdong Kito Ceramics Co. Ltd (Foshan, China), Jingdezhen Kito Ceramic Co. Ltd (Jingdezhen, China), Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd (Jingdezhen, China) and Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd (Sihui, China) (represented by: M. Sánchez Rydelski, lawyer)

Defendant: Council of the European Union

Form of order sought

— Annul Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1), in so far as it concerns the applicants; and

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

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant has committed a manifest error in the interpretation and application of Article 18 of Council Regulation (EC) No 1225/2009 (1).

2. Second plea in law, alleging that the contested regulation is lacking sufficient reasoning.

3. Third plea in law, alleging that the procedure leading up to the contested regulation was not in compliance with general principles of EU law, such as the principle of sound administration, transparency and with the right of defence of the applicants and infringed upon Article 18(4) of the Council Regulation (EC) No 1225/2009.

(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 2009 L 343, p. 51).
First plea in law, alleging infringement of Article 107(1) TFEU: the deduction of losses is not an aid granted through State resources

With regard to this plea, the applicant submits that Paragraph 8c(1) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) infringes the principle of net profit or loss and the ability-to-pay principle and that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty merely prevents an unconstitutional intervention in the assets of taxable persons in cases covered by that provision. For that reason the applicant takes the view that the Community law definition of State aid is not fulfilled.
EN Official Journal of the European Union C 32/34

Action brought on 1 December 2011 — Spa Monopole v OHIM — South Pacific Management (Manea Spa)

(Case T-611/11)

2012/C 32/69

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and E. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: South Pacific Management (Papeete, Polynesia)

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 8 September 2011 in Joined Cases R 1776/2010-1 and 1886/2010-1;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: South Pacific Management.

Community trade mark concerned: word mark ‘Manea Spa’ for goods and services in Classes 3, 24, 25, 43 and 44.

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

Mark or sign cited in opposition: Benelux registrations of the word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 3, 32 and 42 (now Class 44).

Decision of the Opposition Division: partial rejection of the opposition.

Decision of the Board of Appeal: dismissal of the applicant’s appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009 in the assessment of the similarity of the marks at issue and as regards the assessment of the importance of the distinctive character acquired by use of the mark ‘SPA’ and of the likelihood of confusion, as well as breach of Article 8(5) of Regulation No 207/2009 as regards the assessment of the reputation of the marks ‘SPA’ and ‘Les Thermes de Spa’.
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an infringement of the duty to state reasons on the part of the Council, as well as the applicants’ rights of defence, in particular the right to be heard and to an effective judicial remedy;
EN Official Journal of the European Union C 49/29

Action brought on 14 December 2011 — Heads! v OHIM (HEADS)

(Case T-639/11)

2012/C 49/53

Language of the case: German

Parties

Applicant: Heads! GmbH & Co. KG (Munich, Germany) (represented by A. Jaeger-Lenz and T. Bösling, 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 11 October 2011 in Case R 2348/2010-1 in so far as the registration of trade mark No 8327926 ‘HEADS’ for services in Class 35 (Business management; Business administration; Personnel and management consulting services; Personnel marketing; Recruitment of specialist and senior staff; Provision of temporary specialist and senior staff (temporary management)) was refused;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘HEADS’ for services in Class 35.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed in part.

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009 since the Community trade mark at issue has distinctive character and since the Board of Appeal did not make any specific findings with regard to the ground for refusal under Article 7(1)(b) of Regulation No 207/2009 on which its decision is based; wrongfully took as a basis for its assessment word combinations not covered by the application for registration; wrongly relied on a decision of the (German) Federal Patent Court; and the conclusions drawn from the presumed point of view of the target public do not apply.
EN Official Journal of the European Union C 80/19

Action brought on 30 December 2011 — TV2/Danmark v Commission

(Case T-674/11)

2012/C 80/34

Language of the case: Danish

Parties

Applicant: TV2/Danmark (Odense, Denmark) (represented by: O. Koktvedgaard)

Defendant: European Commission

Form of order sought

— Principal head of claim: annulment of Commission Decision of 20 April 2011 on the measures implemented by Denmark for TV2/Danmark (C 2/2003), in so far as it finds that the measures investigated constituted State aid within the meaning of Article 107(1) TFEU (recitals 101 and 153 and first paragraph of the Conclusion of the Decision).

— Alternative head of claim: annulment of Commission Decision of 20 April 2011 on the measures implemented by Denmark for TV2/Danmark (C 2/2003) in so far as it finds: — that the measures investigated constituted new aid which therefore had to be notified (recital 154 and first paragraph of the Conclusion of the Decision); — that the licensing fees which, in the years 1997-2002, were transferred to the regions via TV2, constituted State aid for TV2 (recital 194 of the Decision); and — that the advertising revenues which, in 1995 and 1996 and at the time of the winding-up of the TV2 Fund in 1997, were transferred from the TV2 Fund to TV2, constituted State aid for TV2 (recitals 90, 92, 193 and 195, with Table 1).

Pleas in law and main arguments

In support of the action, the applicant submits that the contested decision is contrary to Article 107(1) TFEU, Article 14 TFEU and the Amsterdam Protocol. The applicant submits:

— that the applicant did not receive State aid, in that the measures investigated did not favour TV2/Danmark within the meaning of Article 107 TFEU, but were merely compensation for the public services provided by TV2/Danmark. The applicant submits that the Commission did not apply the conditions in Altmark according to their intended spirit and purpose and found, incorrectly, that the second and fourth conditions in Altmark were not fulfilled.

— that the alleged aid to TV2/Danmark in the form of licensing fees and corporate tax exemptions was not new aid within the meaning of Regulation No 659/1999 (1), since those arrangements preceded Denmark’s accession to the EU;

— that the licensing fees which were transferred to the regions via TV2/Danmark from 1997 to 2002 cannot be categorised as State aid to TV2/Danmark, since TV2/Danmark was not the actual recipient of those funds; and

— that the funds which were transferred from TV2 Reklame A/S via the TV2 Fund to TV2/Danmark derived from the sale of advertising did not constitute State aid, since that was payment for TV2/Danmark’s broadcasting of advertising on TV2/Danmark’s broadcasting network.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of [Article 108 TFEU] (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 65/15

Action brought on 30 December 2011 — Polytetra v OHIM — EI du Pont de Nemours (POLYTETRAFLON)

(Case T-660/11)

2012/C 65/29

Language in which the application was lodged: English

Parties

Applicant: Polytetra GmbH (Mönchengladbach, Germany) (represented by: R. Schiffer, lawyer)

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

Other party to the proceedings before the Board of Appeal: EI du Pont de Nemours and Company (Wilmington, United States)

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 29 September 2011 in case R 2005/2010-1; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘POLYTETRAFLON’, for goods and services in classes 1, 11, 17 and 40 — Community trade mark application No 6131015

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 432120 of the word mark ‘TEFLON’, for amongst others, goods and services in classes 1, 11, 17 and 40

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected the Community trade mark application

Pleas in law: Infringement of Articles 8(1)(b), 15(1), 42(2) and (3) of Council Regulation No 207/2009, insofar as the Board of Appeal wrongly concluded that there was a likelihood of confusion between the mark applied for and the earlier mark and that genuine use for the earlier mark was proven.
2.

Second plea in law, alleging, in the alternative, breach of Article 107(3)(c) TFEU in that the Commission made the compatibility of the measure in question conditional upon the requirement laid down in Article 2 of the contested decision being satisfied. The second plea is divided into two parts. — By the first part of the plea, the applicant submits that the Commission infringed Article 107(3)(c) TFEU when it took the view that the competitively fair rate had not been attained in the present case because non-common risks had not been taken into account in calculating the contribution paid by France Télécom following the entry into force of the 1996 Law. — By the second part of the plea, the applicant submits, in the alternative, that the Commission infringed Article 107(3)(c) TFEU when it refused to assess the inadequacy of the competitively fair rate in the light of the payment of an exceptional flat-rate contribution by France Télécom and when it concluded that that company had not been placed in a completely equivalent position to that of its competitors until 2043.
EN Official Journal of the European Union C 165/23

Action brought on 19 March 2012 — ActionSportGames v OHIM

(Case T-122/12)

2012/C 165/39

Language in which the application was lodged: Danish

Parties

Applicant: ActionSportGames A/S (Humlebæk, Denmark) (represented by: W. Rebernik, lawyer)

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

Other party to the proceedings before the Board of Appeal: FN Herstal SA (Herstal, Belgium)

Form of order sought

— Annul the defendant’s decision of 12 January 2012 in Case R 2096/2010-1;

— Uphold the decision of the Opposition Division of 24 September 2010 (Case No B 1 344 904);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: ActionSportGames A/S

Community trade mark concerned: Word mark ‘SCAR’ for goods in Class 28 in Community trade mark application No 5 750 054.

Proprietor of the mark or sign cited in the opposition proceedings: FN Herstal SA

Mark or sign cited in opposition: The non-registered Belgian word mark ‘SCAR’ for goods in Classes 13 and 28.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Decision of the Opposition Division annulled and case referred back to that division.

Pleas in law: The applicant claims that there is no likelihood of confusion between the disputed trade marks, since the goods at issue are fundamentally different because FN Herstal’s goods are made up of proper firearms for military use, whereas the applicant’s goods are replica and toy weapons for sport and play.
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annul, in so far as these measures relate to the applicants: — Decision 2011/273/CFSP, as supplemented and amended to date, including all the decisions cited at point 17 above; — Regulation No 442/2011, as supplemented and amended to date, including all the regulations cited at point 18 above; — Decision 2011/782/CFSP, as supplemented and amended to date, in particular by Implementing Decision 2012/37/CFSP, in accordance with point 19 above; — Regulation No 36/2012, as supplemented and amended to date, in particular by Implementing Regulation No 55/2012, in accordance with point 20 above;
EN Official Journal of the European Union C 89/29

Action brought on 12 February 2012 — CF Sharp Shipping Agencies Pte v Council

(Case T-53/12)

2012/C 89/48

Language of the case: English

Parties

Applicant: CF Sharp Shipping Agencies Pte Ltd (Singapore, Singapore) (represented by: S. Drury, Solicitor, K. Adamantopoulos and J. Cornelis, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Council Implementing Regulation (EU) No 1245/2011 (1) and Council Regulation (EU) No 961/2010 (2) ab initio and with immediate effect insofar as it concerns applicant’s inclusion in Annex VIII to Council Regulation (EU) No 961/2010; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that by stating that the applicant is an Islamic Republic of Iran Shipping Lines front company, owned or controlled by the latter, the defendant has manifestly misstated the facts and committed a manifest error in the application of Article 16 (2) (d) of Council Regulation (EU) No 961/2010 by including the applicant in Annex VIII to the said Regulation.

2. Second plea in law, alleging that the defendant has infringed its obligations to give reasons contained in Article 296 TFEU and Article 36 (3) of Council Regulation (EU) No 961/2010.

3. Third plea in law, alleging the defendant’s failure to state reasons has resulted in the infringement of the applicant’s rights of defence, in particular the right to be heard and the right to an effective judicial review.

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

(2) Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1)
EN Official Journal of the European Union C 184/14

Action brought on 5 April 2012 — Microsoft v OHIM — Sky IP (SKYDRIVE)

(Case T-153/12)

2012/C 184/26

Language in which the application was lodged: English

Parties

Applicant: Microsoft Corp. (Redmond, US) (represented by: A. Carboni and J. Colbourn, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Sky IP International Ltd (Isleworth, United Kingdom)

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 19 January 2012 in case R 2293/2010-1, and remit the application to OHIM to allow it to proceed; and

— Order OHIM and any intervening party in this Appeal to bear their own costs and pay the applicant’s costs of these proceedings and those of the appeal before the First Board of Appeal in case R 2293/2010-1 and of Opposition B 1 371 501 before the Opposition Division.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SKYDRIVE’, for goods and services in classes 9 and 35 — Community trade mark application No 6452411

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 3203411 of the word mark ‘SKY’, for amongst others goods and services in classes 9, 35, 38 and 42

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, as the Board of Appeal’s assessment of the likelihood of confusion was flawed. Further or in the alternative, the Board failed to carry out a proper global assessment of the likelihood of confusion.