ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 273/12

Action brought on 25 June 2012 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO)

(Case T-277/12)

2012/C 273/20

Language in which the application was lodged: English

Parties

Applicant: Bimbo, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: Café do Brasil SpA (Melito di Napoli, Italy)

Form of order sought

— Modify the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2012 in case R 1017/2011-4;

— In the alternative and only in the case the former claim would be rejected, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2012 in case R 1017/2011-4; and

— Order the defendant and the other party to the proceedings to pay 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 in black, red, gold and white ‘Caffè KIMBO’, for goods in classes 11, 21 and 30 — Community trade mark application No 3478311

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

Mark or sign cited in opposition: Spanish trade mark registration No 291655 of the word mark ‘BIMBO’ for goods in class 30; Earlier well-known mark in Spain ‘BIMBO’ for goods in class 30

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Partially annulled the contested decision and dismissed the appeal for the remainder

Pleas in law:

— Infringement of Articles 64, 75 and 76 of Council Regulation (EC) No 207/2009; and
Error of law in concluding that there was State aid in favour of CDL (misapplication of the private investor principle). Infringement of Articles 107(1) TFEU and 345 TFEU

The applicants submit that the Commission incorrectly analyses the private investor principle and is mistaken in its conclusion concerning the existence of State aid. The Generalitat Valenciana’s investments in CDL occurred on two separate occasions — in 2000 and 2004 — and both investment decisions were adopted after the respective business plans, which established that the project was expected to be profitable, had been produced. In applying the private investor principle in this case, the Commission compares that project with the profitability of projects and operators which are not comparable due to their size, thereby emptying that principle of its content in breach of Articles 107(1) and 345 TFEU.

Similarly, the Commission refuses to take into account in its legal and economic analysis the existence, in addition to the film studio project, of the project to develop a commercial, leisure and hotel area on neighbouring land of the Sociedad Proyectos Temáticos de la Comunidad Valenciana (‘SPTCV’). If both projects are taken into account, the profitability of the investment in CDL is even greater.
—

the European Union’s liability for unlawful decisions of the European Commission consisting in: (a) misinterpretation of Article 10(1) of Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 386, p. 1); (b) a breach of Article 20 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32); (c) breaches of several general principles of law (principles of proportionality and of protection of legitimate expectations, duty of care, right to an effective judicial protection in respect of property rights), when deciding not to disclose or allow disclosure of the location of stolen European Emission Allowances in the framework of the European Union Emissions Trading Scheme.
—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2012 in Case R 1335/2011-2 in relation to Community trade mark application No 9 532 797‘FLEXI’;
EN Official Journal of the European Union C 295/28

Action brought on 30 July 2012 — Gandia Blasco v OHIM — Sachi Premium — Outdoor Furniture (Armchairs)

(Case T-339/12)

2012/C 295/50

Language in which the application was lodged: English

Parties

Applicant: Gandia Blasco, SA (Valencia, Spain) (represented by: I. Sempere Massa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sachi Premium — Outdoor Furniture, Lda (Estarreja, Portugal)

Form of order sought

— Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 25 May 2012 (R 970/2011-3) Declare the contested Community Design No 1512633-0001 invalid; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: A design for ‘armchairs, loungers’ — registered Community design No 1512633-0001

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 invalidation of the RCD based on Articles 4 to 9 of Council Regulation No 6/2002; Community design registration No 52113-0001, for ‘armchairs’

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 4 to 9 of Council Regulation No 6/2002
—

In the alternative, amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 June 2012 in case R 1452/2011-2, and rule that the appeal is justified; and
EN Official Journal of the European Union C 319/11

Action brought on 8 August 2012 — Vuitton Malletier v OHIM — Nanu-Nana (Device of a chequer-board pattern)

(Case T-360/12)

2012/C 319/20

Language in which the application was lodged: English

Parties

Applicant: Louis Vuitton Malletier (Paris, France) (represented by: P. Roncaglia, G. Lazzaretti and N. Parrotta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG (Berlin, Germany)

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 16 May 2012 in case R 1854/2011-1;

— Order OHIM to pay the costs incurred by the applicant during these proceedings; and

— Order Nanu-Nana Handelsgesellschaft mbH für Geschenkartikel & Co. KG to pay the costs incurred by the applicant in the proceedings before the OHIM Cancellation Division and Boards of Appeal.

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 device of a checked pattern for goods in class 18 — Community trade mark application No 6587851

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 other party to the proceedings before the Board of Appeal filed its request for declaration of invalidity against the CTM on the basis of absolute grounds, namely Article 52(1)(a) in connection with Article 7(1)(b), (c), (d), (e)(iii) and (f) of Council Regulation No 207/2009, and on absolute grounds under Article 52(1)(b) of Council Regulation No 207/2009

Decision of the Cancellation Division: Upheld the request for invalidity in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

— Infringement of Article 7(1)(b) of Council Regulation No 207/2009; and
—

Annul Commission decision C(2012) 4617 final of 28 June 2012 refusing to grant the applicant an extension until 31 December 2014 of the Final Investment Decision deadline provided by one of the Commitments imposed in merger proceedings (Case No COMP/M.5549 — EDF/SEGEBEL);
EN Official Journal of the European Union C 343/17

Action brought on 28 August 2012 — Borrajo Canelo and Others v OHIM

(Case T-381/12)

2012/C 343/29

Language in which the application was lodged: Spanish

Parties

Applicants: Ana Borrajo Canelo (Madrid, Spain), Carlos Borrajo Canelo (Madrid), Luis Borrajo Canelo (Madrid) (represented by: A. Gómez López, lawyer)

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

Other party to the proceedings before the Board of Appeal: Technoazúcar (Havana, Cuba)

Form of order sought

— Uphold the action and declare incompatible with Council Regulation (EC) No 40/94 on the Community trade mark (now Regulation (EC) No 207/2009) the decision of the Second Board of Appeal of 21 May 2012 in Case R 2265/2010-2, rejecting the action brought by the applicants for revocation against the decision of the Cancellation Division of 24 September 2010, rejecting the application for revocation of Community trade mark No 4 602 454 PALMA MULATA for goods in Class 33, for ‘rum’;

— Order the defendant and, as appropriate, the intervener, to pay all the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: Nominative mark PALMA MULATA for goods in Class 33 — registered Community trade mark No 4 602 454

Proprietor of the Community trade mark: Technoazúcar

Party applying for revocation of the Community trade mark: The applicants

Decision of the Cancellation Division: Rejection of the application for revocation

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 15(1)(a) of Regulation No 207/2009
EN Official Journal of the European Union C 379/24

Action brought on 24 September 2012 — Bacardi v OHIM — Granette & Starorežná Distilleries (42 BELOW)

(Case T-435/12)

2012/C 379/42

Language in which the application was lodged: English

Parties

Applicant: Bacardi Co. Ltd (Vaduz, Liechtenstein) (represented by: M. Reinisch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Granette & Starorežná Distilleries a.s. (Ústí nad Labem, Czech Republic)

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 9 July 2012 in case R 2100/2011-2;

— Reject the opposition against the registration of the word-device mark ‘42 BELOW’ No 8391856 for goods in class 33;

— Transmit the judgment of the General Court of the European Union to OHIM; and

— Order OHIM and the other party to the proceedings before the Board of Appeal to pay all costs and expenses.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘42 BELOW’, for goods in class 33 — Community trade mark application No 8391856

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: Czech trade mark registration No 263350 for the figurative mark ‘VODKA 42’, for among others goods and services in class 33; Unregistered trade mark ‘VODKA 42’ used in Czech Republic and Slovakia

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

Decision of the Board of Appeal: Upheld the appeal and refused the CTM application for all the goods

Pleas in law:

— Infringement of Rule 50(2)(g) of Commission Regulation No 2868/95; and
—

Annul Commission decision C(2012) 4381 final of 27 June 2012 amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement (Case COMP/39.966 — Gas Insulated Switchgear — fines), in so far as it concerns the applicant; or, in the alternative,
EN Official Journal of the European Union C 379/25

Action brought on 5 October 2012 — ancotel v OHIM — Acotel (ancotel.)

(Case T-443/12)

2012/C 379/44

Language in which the application was lodged: German

Parties

Applicant: ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Acotel SpA (Rome, Italy)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in Case R 1895/2011-4 (ex R 1385/2008-1);

— 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 figurative mark, containing the word element ‘ancotel’, for services in Classes 35 and 38 — Community trade mark application No 3 314 424

Proprietor of the mark or sign cited in the opposition proceedings: Acotel SpA

Mark or sign cited in opposition: the national and Community figurative mark, containing the word element ‘ACOTEL’, for goods and services in Classes 9 and 38

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

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 26/50

Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (ZOOSPORT)

(Case T-453/12)

2013/C 26/102

Language in which the application was lodged: English

Parties

Applicant: Zoo Sport Ltd (Leeds, United Kingdom) (represented by: I. Rungg, lawyer)

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

Other party to the proceedings before the Board of Appeal: K-2 Corp. (Seattle, United States)

Form of order sought

The applicant claims that the Court should:

— Vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2012 in case R 1119/2011-4, so as to reject the opposition in its entirety; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ZOOSPORT’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 8909251

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 5233119 for the word mark ‘ZOOT’, for goods in classes 9 and 25; Community trade mark registration No 4719316 for the figurative mark in black and white ‘SPORTS ZOOT SPORTS’, for goods and services in classes 25, 35, 36 and 41

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

Decision of the Board of Appeal: Partially annulled the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 38/25

Action brought on 12 November 2012 — Refrigue-confecções para o frio v OHIM — Fronsac SW and Sixty International (Refrigue for cold)

(Case T-511/12)

2013/C 38/45

Language in which the application was lodged: Italian

Parties

Applicant: Refrigue-confecções para o frio, Lda (Pinhal Novo, Portugal) (represented by: C. Bacchini and M. Mazzitelli, lawyers)

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

Other parties to the proceedings before the Board of Appeal: Fronsac SW and Sixty International SA (Luxembourg, Luxembourg)

Form of order sought

The applicant claims that the General Court should:

— annul in part the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 August 2012 in Case R 2353/2010-2, insofar as that decision upheld the opposition to registration of the mark at issue ‘Refrigue for Cold’ for all the contested goods in Classes 18 and 25;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark containing the word elements ‘Refrigue for cold’, for goods in Classes 18, 24 and 25 — Trade mark application No 5 486 725

Proprietor of the mark or sign cited in the opposition proceedings: Fronsac SW and Sixty International SA

Mark or sign cited in opposition: Community and national figurative marks containing the word element ‘RefrigiWear’ and national figurative mark containing the word elements ‘This RefrigiWear’, for goods in Classes 3, 9, 14, 18 and 25

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Decision of the Opposition Division annulled in part and application for registration dismissed in part

Pleas in law:

— Infringement of Article 8(1)(b) of Regulation No 207/2009

— Infringement of Article 75 of Regulation No 207/2009
2.

Infringement of the first sentence of Article 3 of Regulation (EC) No 1367/2006 (2) in conjunction with Article 2(1) of Regulation (EC) No 1049/2001 The applicant submits that the implied refusal of its request infringes the first sentence of Article 3 of Regulation (EC) No 1367/2006 in conjunction with Article 2(1) of Regulation (EC) No 1049/2001 as it has a right to have the environmental information sought made accessible on the basis of those provisions and there are no grounds for refusal, which have to interpreted strictly. In particular the applicant is of the view that the ground for refusal in the first subparagraph of Article 4(3) of Regulation No 1049/2001 does not apply. The requested documents relate solely to particulars with which the Federal Republic of Germany provided the Commission and not to an ongoing examination of those particulars by the Commission. It is not therefore to be feared that the Commission’s decision-making process would be seriously undermined. Furthermore, the applicant submits that even the opinion of the consulted authorities, which is as yet outstanding, is not a ground for refusing its request. It submits in that regard, that the exception in Article 4(5) of Regulation No 1049/2001 cannot be interpreted so broadly that it gives a Member State a right of veto on the basis of which it could, at its discretion, oppose access to the requested documents. That would be contrary to the Aarhus Convention’s objective of establishing and furthering transparency in decision-making in environmental matters.
EN Official Journal of the European Union C 26/65

Action brought on 21 November 2012 — Conrad Electronic v OHIM — Sky IP International (EuroSky)

(Case T-510/12)

2013/C 26/128

Language in which the application was lodged: German

Parties

Applicant: Conrad Electronic SE (Hirschau, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, J. Künzel, D. Jestaedt, M. Bergermann, J. Vogtmeier and A. Kramer)

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

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 September 2012 in Case R 1183/2011-4;

— Order the defendant to pay the costs including the costs incurred in the appeal proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘EuroSky’ for goods in Class 9 — Community trade mark application No 4 539 896

Proprietor of the mark or sign cited in the opposition proceedings: Sky IP International Ltd

Mark or sign cited in opposition: the national and Community word and figurative mark ‘SKY’ for goods and services in Classes 9, 16, 18, 25, 28, 35, 36, 38, 41, 42, 43 and 45

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 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 26/57

Action brought on 16 November 2012 — European Drinks v OHIM — Alexandrion Grup Romania (Dracula Bite)

(Case T-495/12)

2013/C 26/115

Language in which the application was lodged: English

Parties

Applicant: European Drinks SA (Ștei, Romania) (represented by: V. von Bomhard, lawyer)

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

Other party to the proceedings before the Board of Appeal: SC Alexandrion Grup Romania Srl (Pleasa, Romania)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 680/2011-4; and

— Order that the costs of the proceedings be borne by the Defendant.

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 in colour ‘Dracula Bite’, for goods and services in classes 33, 35 and 39 — Community trade mark application No 7588247

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

Mark or sign cited in opposition: Romanian trade mark registration No 34847 of the figurative mark ‘Dracula’, for goods and services in classes 33 and 35

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

Decision of the Board of Appeal: Dismissed the appeal

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