ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 301/47

Action brought on 10 September 2008 — Advance Magazine Publishers v OHIM — Capela & Irmãos (VOGUE)

(Case T-382/08)

(2008/C 301/80)

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, United States) (represented by: M. Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: J. Capela & Irmãos, Lda. (Porto, Portugal)

Form of order sought

— Alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 328/2003-2 so as to hold that the appeal brought by the applicant before the Board of Appeal is well founded and, consequently, that the opposition is rejected and the Community trade mark concerned is admitted;

— In the alternative, annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2008 in case R 328/2003-2; and

— Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs, including the costs of appeal incurred before OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘VOGUE’ for goods and services in classes 9, 14, 16, 25 and 41

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: Portuguese trade mark registration No 143 183 of the word mark ‘VOGUE Portugal’ for goods in class 25; Portuguese business name No 32 046 ‘VOGUE-SAPATARIA’

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: (i) Infringement of Article 43(2) and (3) of Council Regulation No 40/94 and Rule 22 of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly considered that the evidence submitted by the other party to the proceedings before the Board of Appeal did constitute proof of genuine use of the earlier trade mark; (ii) Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal wrongly found that the goods in question are similar; (iii) Infringement of Articles 61(1) and 62(2) of Council Regulation No 40/94 insofar as the Board of Appeal wrongly based its ruling on the fact that the applicant failed to challenge the findings of the Opposition Division as to the proof of use or as to the similarity of the goods and services in question, as well as on the fact that before the Opposition Division the applicant implicitly considered that the proof of use was sufficient.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 301/58

Action brought on 3 October 2008 — Studio Vacanze v Commission

(Case T-436/08)

(2008/C 301/96)

Language of the case: Italian

Parties

Applicant: Studio Vacanze (Budoni, Italy) (represented by: M. Cannata, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

Principal forms of order sought:

— Annul the decision of the Commission of the European Communities of 2 July 2008;

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

Alternative form of order sought:

Annul Article 2(2) of the contested decision in so far as it orders recovery of the aid found to be incompatible, together with interest, as from the date on which the amounts were made available to the recipients until the date of their actual recovery.

Pleas in law and main arguments

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

The applicant relies on the following pleas in support of its action:

— infringement of Article 16 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1), in so far as that provision authorises the opening of the formal investigation procedure only in cases of ‘misuse of aid’ and not for the ‘creation of unlawful aid’: it follows, according to the applicant, that the entire formal investigation procedure is invalid;

— failure to state adequate reasons as regards the amendment of the subject-matter of the procedure opened for the misuse of aid measure No 278/99, and the ‘extension’ which led to the adoption of the contested decision;

— infringement of Article 88(2) EC in so far as the statement in recital 74 of the decision, regarding the unlawful implementation of the aid in question, is outside the scope of that provision;

— breach of the principle of transparency;

— failure to state adequate reasons as regards the principle of the reasonable duration of the formal investigation procedure;

— failure to state reasons as regards the recovery of the aid already disbursed, having regard to the fact that this point was also of particular importance in relation to the principle of the protection of legitimate interests of third parties and to the unreasonably lengthy duration of the proceedings;

— breach of the de minimis principle laid down in Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (2).

(1) OJ L 83, 27.3.1999, p. 1.

(2) OJ L 10, 13.1.2001, p. 30.
EN Official Journal of the European Union C 313/40

Action brought on 29 September 2008 — IMRO v Commission

(Case T-415/08)

(2008/C 313/72)

Language of the case: English

Parties

Applicant: Irish Music Rights Organisation Ltd (The) — Eagras um Chearta Cheolta (IMRO) (Dublin, Ireland) (represented by: M. Favart, lawyer and D. Collins, Solicitor)

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 the authors' society to another constitute a concerted practice in violation of Article 81 EC and Article 53 EEA.

The applicant puts forward two pleas in law in support of its claims.

First, the applicant submits that the Commission committed an error of assessment, infringed the Article 81 EC and violated its obligation to state reasons foreseen by Article 253 EC by deciding that the parallel territorial delineation included in the reciprocal representation agreements concluded by the applicant and the other CISAC members is the result of a concerted practice. It claims that the level of evidence put forward by the Commission in the decision is insufficient to establish that the parallel conduct is not the result of normal competitive condition but constitutes such a concerted practice. The applicant further states that the presence of the delineation clause in all of its reciprocal agreements is justified by the interest of its members.

Second, in the alternative, the applicant argues that, contrary to the findings of the contested decision, the territorial delineation by CISAC societies in their reciprocal representation agreements is not restrictive of competition within the meaning of Article 81(1) EC because it concerns a form of competition that is not worthy of protection. Nevertheless, to the extent that the alleged concerted practice on territorial delineations should be considered to restrict competition, the applicant claims that it cannot be considered illegal or infringing Article 81(1) EC because it is necessary and proportionate to the legitimate objective of protecting the rights of the societies' members and the authors.
EN Official Journal of the European Union C 313/36

Action brought on 15 September 2008 — Nadine Trautwein Rolf Trautwein v OHIM (Representation of a dog)

(Case T-385/08)

(2008/C 313/66)

Language in which the application was lodged: German

Parties

Applicant: Nadine Trautwein Rolf Trautwein GbR, Research Development (Leopoldshöhe, Germany) (represented by C. Czychowski, A. Nordemann and A. Dustmann)

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

Form of order sought

— annul Decision R 1734/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 30 June 2008, together with the decision of the examiner of 25 September 2007 to the extent that protection was refused for the application for Community trade mark 4829321 for goods ‘leather goods included in Class 18; bags’ in Class 18 and ‘foodstuffs for animals and drinks for domestic animals’ in Class 31;

— authorise the publication of the application for the registration of Community trade mark 4829321 in respect of those goods as well and

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Representation of a dog for goods in Classes 18, 25 and 31 — Application No 4 829 321

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Annulment of the contested decision as regards ‘clothing, footwear and headgear; belts’ in Class 25

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulatin No 40/94, as the mark applied for is neither directly nor exclusively descriptive, and has a sufficiently distinctive character.
EN Official Journal of the European Union C 313/35

Action brought on 11 September 2008 — Mustang v OHIM

(Case T-379/08)

(2008/C 313/64)

Language in which the application was lodged: German

Parties

Applicant: Mustang-Bekleidungswerke GmbH + Co. KG (Künzelsau, Germany) (represented by: A. Klett and K. Weimer, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Decathlon SA (Villeneuve d'Ascq, France)

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 8 July 2008 in Case R 859/2007-4;

— order the defendant to pay the costs of these proceedings and the proceedings before the Board of Appeal, including the applicant's costs in both proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Mustang

Community trade mark concerned: Representation of a wavy line for goods and services in Classes 3, 18 and 25 (Application No 4 081 352)

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

Mark or sign cited in opposition: Existing national and international figurative mark constituted by the representation of a white wavy line on a black background, for goods in Classes 3, 18 and 25.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, because there are no aural, visual and conceptual similarities between the opposing marks that could give rise to a likelihood of confusion.
EN Official Journal of the European Union C 313/36

Action brought on 15 September 2008 — DAI v Commission

(Case T-381/08)

(2008/C 313/65)

Language of the case: Portuguese

Parties

Applicant: DAI — Sociedade de Desenvolvimento Agro-Industrial, SA (Coruche, Portugal) (represented by: J. da Cruz Vilaça, L. Romão and A. Mestre, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— A declaration that the action is admissible;

— a decision allowing the action and annulment in part of Commission Decision 2008/445/EC of 11 June 2008 fixing the amounts per Member State of retroactive restructuring aid for growers and undertakings having restructured in the 2006/07 and 2007/08 marketing years in the framework of the temporary scheme for the restructuring of the sugar industry of the Community (notified under document number C(2008) 2557) (1), in so far as it refers to the amount of restructuring aid allocated to Portugal to be paid to growers and undertakings having restructured in the 2006/07 and 2007/08 marketing years;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

Infringement of Article 1(1)(c) of Regulation (EC) No 1261/2007 (2) and of Article 16a of Regulation (EC) No 1264/2007 (3).

Breach of the principles of equality, legal certainty and of the non-retroactive effect of laws.

(1) OJ 2008 L 156, p. 20.

(2) Council Regulation (EC) No 1261/2007 of 9 October 2007 amending Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community.

(3) Commission Regulation (EC) No 1264/2007 of 26 October 2007 amending Regulation (EC) No 968/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community.
EN Official Journal of the European Union C 19/35

Action brought on 24 November 2008 — Bang & Olufsen v OHIM (Representation of a loudspeaker)

(Case T-508/08)

(2009/C 19/65)

Language of the case: English

Parties

Applicant(s): Bang & Olufsen A/S (Struer, Denmark) (represented by K. Wallberg, lawyer)

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

Form of order sought

— Annul paragraph 2 the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2008 in case R 497/2005-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The three-dimensional mark representing a loudspeaker for goods in classes 9 and 20 — application No 3 354 371

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Partial annulment of the decision of the examiner

Pleas in law: Infringement of Article 63(6) of Council Regulation No 40/94 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of Justice; Infringement of Article 7(1)(e)(iii) of Council Regulation No 40/94 as the Board of Appeal wrongly took the view that the Community trade mark concerned is a sign which consists exclusively of a shape which gives substantial value to the goods.
EN Official Journal of the European Union C 6/36

Action brought on 21 October 2008 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS)

(Case T-466/08)

(2009/C 6/72)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (München, 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 29 July 2008 in case R 1796/2007-1;

— Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the community trade mark concerned to the extent the opposition is based on the trade mark cited in the opposition proceedings and, further, is based on a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation 40/94;

— Order OHIM to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should the other party to the proceedings before the Board of Appeal become an intervener in the present case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ACNO FOCUS’ for goods in class 3 — application No 3 272 705

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: German trade mark registration No 394 07 564 of the word mark ‘FOCUS’ for goods and services in classes 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33, 34, 36, 38, 39, 41 and 42; Community trade mark application No 453 720 for, among others, goods in class 3

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 42(3) in conjunction with Article 43(2) of Council Regulation No 40/94 as the Board of Appeal erred in its approach that the other party to the proceedings before the Board of Appeal can rely on goods in class 3 to oppose the registration of the Community trade mark concerned; Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there exists a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 44/48

Action brought on 20 November 2008 — Rundpack v OHIM (Representation of a tumbler)

(Case T-503/08)

(2009/C 44/85)

Language in which the application was lodged: German

Parties

Applicant: Rundpack (represented by R. Chmilewsky-Lehner, lawyer)

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

Form of order sought

— Annul the contested decision (R 1400/2006-1) of OHIM of 3 September 2008 and refer the trade mark application No 003 317 591 back to OHIM to allow for the registration process to continue, and order OHIM to bear all the costs associated with the case, in particular including those incurred before the Board of Appeal.

— In the alternative, annul the contested decision of OHIM of 3 September 2008 and refer the trade mark application No 003 317 591 in respect of a reduced list of goods back to OHIM to allow for the registration process to continue, and order OHIM to bear all the costs associated with the case, in particular including those incurred before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark ‘BECHER RUND’ in respect of goods in Classes 16, 17 and 20 (Application No 3 317 591).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1) in that the trade mark applied for has the necessary minimum distinctive character.

(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 44/48

Action brought on 21 November 2008 — Volkswagen v OHIM — Deutsche BP (SunGasoline)

(Case T-502/08)

(2009/C 44/84)

Language in which the application was lodged: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla and S Risthaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Deutsche BP AG (Gelsenkirchen, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 19 September 2008 in appeal case R-513/2007-4, and

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

Pleas in law and main arguments

Applicant for a Community trade mark: Volkswagen.

Community trade mark concerned: word mark ‘SunGasoline’ in respect of goods and services in Classes 4, 7, 12, 35, 37 and 39 (Application No 3 418 647).

Proprietor of the mark or sign cited in the opposition proceedings: Deutsche BP AG.

Mark or sign cited in opposition: the German word mark ‘GASOLIN’ (Trade mark No 763 901) in respect of goods in Class 4.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Appeal upheld for certain goods in Class 4.

Pleas in law: Infringement of Article 15(2)(b) in conjunction with Article 43(2) of Regulation No 40/94 (1) in that legally accepted use of the mark in opposition was not proved to the requisite level, and infringement of Article 8(1)(b) of Regulation No 40/1994 in that there is no 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 44/52

Action brought on 1 December 2008 — Poste Italiane v Commission

(Case T-525/08)

(2009/C 44/92)

Language of the case: Italian

Parties

Applicant: Poste Italiane (Rome, Italy) (represented by A. Fratini, A. Sandulli and F. Filpo, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Upholding of the action and as a result annulment of the Commission's decision of 16 July 2008 relating to aid C 42/2006 put into effect by Italy in order to provide a return on the current accounts of Poste Italiane with the State Treasury, not yet published in the Official Journal of the European Union;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action is brought against the Commission's decision of 16 July 2008 relating to aid C 42/2006 put into effect by Italy in order to provide a return on the current accounts of Poste Italiane with the State Treasury. That decision declared incompatible with the common market, ordering its repayment, the system of State aid relating to the return on Poste Italiane current accounts with the Treasury, established by Law No 266 of 23 December 2005, and by the agreement between the Ministry of the Economy and Finance and Poste Italiane of 23 February 2006, which was put into effect by Italy, supposedly unlawfully, in breach of Article 88(3) of the Treaty.

In support of its claims the applicant invokes:

— infringement of Article 253 and of the first subparagraph of Article 87 of the EC Treaty, due to errors of fact and a manifest error of assessment, so far as concerns the Commission's application of the prudent borrower test, going so far as to establish a private borrower rate.

— infringement of the first subparagraph of Article 87 of the EC Treaty, due to a manifest error of assessment, with regard to the evaluation of alternative investments. It is stressed in this respect that, in the course of the administrative proceedings, the Italian authorities stated that the criterion set out in the agreement, governing the management of spare funds derived from the postal collection, penalises Poste with regard to the possibility of making profits from active management, and therefore does not confer any ‘advantage’ for the purposes of Article 87 of the Treaty.

Here, the applicant also refers to the relevance of the RBS study and of the opinions of financial brokers, and to the comparison with trading type management, with the management of funds from Poste Vita insurance policies, and with the cost of the Treasury's debt.

— Infringement of Article 253 and of the first subparagraph of Article 87 of the Treaty, due to failure to state reasons and a manifest error of assessment, and breach of the principles of the protection of legitimate expectations and legal certainty, in relation to the lack of any analysis of the element of advantage and of distortion of competition in the context of the universal service mission assumed by Poste.