ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 282/50

Action brought on 18 September 2009 — E.ON Ruhrgas and E.ON v Commission

(Case T-360/09)

2009/C 282/97

Language of the case: German

Parties

Applicants: E.ON Ruhrgas AG (Essen, Germany), E.ON AG (Düsseldorf, Germany) (represented by: G. Wiedemann and T. Klose, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— in the alternative, reduce, as appropriate, the amount of the fine imposed on the applicants in the contested decision;

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

Pleas in law and main arguments

The applicants challenge Commission Decision C(2009) 5355 final of 8 July 2009 in Case COMP/39.401 — E.ON/GDF. In the contested decision, a fine was imposed on the applicants and another undertaking for infringement of Article 81(1) EC, as they had participated in an agreement and concerted practices in the natural gas sector.

The applicants submit six pleas in support of their action.

First, the applicants question the applicability of Article 81(1) EC, as the agreements, criticised by the Commission, do not infringe the prohibition on cartels. In that regard, they claim, in particular, that they relate to permissible ancillary arrangements for the creation of the joint venture MEGAL.

Second, the applicants submit, in the alternative, that the Commission erred in law in assessing the duration of the infringement. In that regard, they claim that the agreements at issue came to an end shortly after the beginning of liberalisation and, in any event, with the formal termination agreement of 13 August 2004.

Third, the applicants complain of discrimination compared to the parties affected by the parallel Commission decisions of 26 October 2004 in the GDF/ENI and GDF/Enel cases. In that regard, they submit that in those cases the Commission, with reference to the liberalisation which had just occurred, refrained from imposing fines and, furthermore, that it should have done the same in the present case, since the cases are comparable — identical even — in all essential aspects.

Fourth, the applicants claim that the alleged 1975 agreements are already statute-barred, since they had been terminated more than five years before the Commission’s examination.

Fifth, the applicants allege an error in law in the calculation of the fines.

Lastly, it is submitted that the Commission breached the principles concerning liability for competition law infringements, in that E.ON AG cannot be held directly, or indirectly, liable for the alleged infringements committed by E.ON Ruhrgas AG.
EN Official Journal of the European Union C 282/50

Action brought on 14 September 2009 — Reber Holding v OHIM — Wedl & Hofmann (Walzer Traum)

(Case T-355/09)

2009/C 282/96

Language in which the application was lodged: German

Parties

Applicant: Reber Holding GmbH & Co. KG (Bad Reichenhall, Germany) (represented by: O. Spuhler and M. Geitz, 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: Wedl & Hofmann (Mils/Hall in Tirol, Austria)

Form of order sought

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 9 July 2009 in Case R 623/2008-4;

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

Pleas in law and main arguments

Applicant for a Community trade mark: Wedl & Hofmann GmbH

Community trade mark concerned: Figurative mark ‘Walzer Taum’ in respect of goods in Classes 21 and 30 (Application No 4 593 752)

Proprietor of the mark or sign cited in the opposition proceedings: Reber Holding GmbH and Co. KG

Mark or sign cited in opposition: the German word mark ‘Walzertraum’ in respect of goods in Class 30 (No 1 092 615) and the opposition was directed against only the registration in respect of the goods in Class 30

Decision of the Opposition Division: Opposition was upheld

Decision of the Board of Appeal: Contested decision was annulled and the opposition was rejected

Pleas in law: Infringement of the first sentence of Article 42(2) of Regulation (EC) No 207/2009 (1) and the general principle of equal treatment in relation to the interpretation of the requirements for genuine use of the mark cited in oppostion

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 297/33

Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)

(Case T-422/09)

2009/C 297/51

Language in which the application was lodged: Spanish

Parties

Applicant: São Paulo Alpargatas, SA (represented by: P. Merino Baylos, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Enrique Fischer

Form of order sought

— uphold the application and annul the decision of the Second Board of Appeal of OHIM of 17 August 2009, with all the appropriate consequences under Community law;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Enrique Fischer

Community trade mark concerned: Figurative mark containing the verbal component “BAHIANAS (LAS ORIGINALES)” (Application No 5 024 591) for goods in class 25.

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

Mark or sign cited in opposition: Community figurative mark containing the verbal component “havaianas” (No 3 772 431), Spanish figurative mark containing the verbal component “havaianas” (M 2 341 904) and Spanish word mark “HAVAIANAS” (M 2 341 905), all for goods in class 25.

Decision of the Opposition Division: Refusal of the application for a Community mark in its entirety.

Decision of the Board of Appeal: Annulment of the contested decision.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 312/40

Action brought on 29 October 2009 — TTNB v OHIM — March (Tila March)

(Case T-443/09)

2009/C 312/66

Language in which the application was lodged: French

Parties

Applicant: TTNB SARL (represented by: J.-M.Moiroux, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Juan Carmen March (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM of 20 August 2009 in Case R 1538/2008-2 and authorise the registration of the mark applied for;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Tamara Taichman, the applicant’s predecessor

Community trade mark concerned: the word mark ‘Tila March’ for goods in Classes 3, 18 and 25 — application No 5 402 722

Proprietor of the mark or sign cited in the opposition proceedings: Carmen March Juan

Mark or sign cited in opposition: the Spanish word mark ‘CARMEN MARCH’ for goods and services in Classes 3, 18, 24, 25, 35 and 38. The opposition was brought against registration of the goods in Classes 3, 18 and 25

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: annulment of the decision of the opposition division

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) since there is no likelihood of confusion between the conflicting marks.
EN Official Journal of the European Union C 312/30

Action brought on 26 September 2009 — Applied Microengineering v Commission

(Case T-387/09)

2009/C 312/50

Language of the case: English

Parties

Applicant: Applied Microengineering Ltd (Didcot, United Kingdom) (represented by: P. Walravens and J. De Wachter, lawyers)

Defendant: Commission of the European communities

Form of order sought

— annul the Commission decision dated 16 July 2009 ordering the recovery of an amount of EUR 258 560,61 plus interests;

— order the Commission to pay the costs.

Pleas in law and main arguments

In the present application, the applicant seeks the annulment of the Commission decision C(2009)5797 of 16 July 2009 relating to the recovery of certain amount plus interests due by the applicant in the framework of the projects IST-199-11823 FOND MST (‘Formation of a New Design House for MST’) and IST-2000-28229 ANAB (‘Assessment of a New Anodic Bonder’) funded under specific programme implementing research, technological development and demonstration activities in the user-friendly information society (1998-2002).

The applicant puts forward seven pleas in support of its claims.

First, it submits that the Commission infringed the essential procedural requirements by failing to conduct a full and proper audit procedure. The applicant states that the Commission failed to inform it of the start of the audit procedure, of the closing of it and it did not take into account the objections submitted by the applicant. The applicant further claims that the Commission violated its rights of defence and the principle of sound administration and the duty of care.

Second, the applicant contends that the action of the Commission was time-barred at least for the payments made more that five years before the official start of the audit procedure.

Third, the applicant argues that the Commission has committed manifest errors of assessment by applying the auditor’s erroneous interpretation of the rules regarding the eligible costs.

Fourth, it claims that the Commission violated fundamental social rights and right to a fair remuneration by accepting hourly rates for workers below the minimum wage.

Fifth, the applicant contends that the Commission infringed the principle of legitimate expectations that the working method of average employment costs, as proposed by the applicant, was valid and the ‘target salaries’ would be considered an acceptable practice for the contractor.

Sixth, it argues that the Commission disregarded its obligation to state reasons as it fully relied on the audit report without considering the applicant’s comments or request for reopening the audit procedure.

Finally, the applicant submits that the Commission breached the principle of sound administration and the duty of care by sending letters to the wrong address and not investigating the arguments put forward by the applicant.
EN Official Journal of the European Union C 11/34

Action brought on 6 November 2009 — Simba Toys v OHIM — Seven Towns (Three-dimensional representation of a cubic toy)

(Case T-450/09)

2010/C 11/64

Language in which the application was lodged: English

Parties

Applicant: Simba Toys GmbH & Co. KG (Fürth, Germany) (represented by: O. Ruhl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seven Towns Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 September 2009 in case R 1526/2008-2; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs incurred in the appeal proceedings and those incurred before the Court.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A three-dimensional representation of a cubic toy for goods in class 28

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

Party requesting the declaration of invalidity of the Community trade mark: The applicant

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b),(c) and (e) of Council Regulation 207/2009, as the Board of Appeal wrongly assessed the absolute grounds for refusal presented by the applicant; Infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to state reasons why it denied the ground for revocation under Article 7(1)(c) of the said regulation; Infringement of Article 76(1) of Council Regulation No 207/2009 as the Board of Appeal failed to identify fully the features of the trade mark subject of the application for a declaration of invalidity and failed to take into account certain features of such trade mark.
EN Official Journal of the European Union C 11/35

Action brought on 13 November 2009 — Westfälisch-Lippischer Sparkassen- und Giroverband v Commission

(Case T-457/09)

2010/C 11/66

Language of the case: German

Parties

Applicant: Westfälisch-Lippischer Sparkassen- und Giroverband (Münster, Germany) (represented by: A. Rosenfeld and I. Liebach, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2009) 3900 final corr. of 12 May 2009 on the State aid C 43/2008 (ex N 390/2008) implemented by Germany for the restructuring of WestLB AG;

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

Pleas in law and main arguments

The applicant has brought an action for the annulment of Commission Decision C(2009) 3900 final corr. of 12 May 2009 on the State aid C 43/2008 (ex N 390/2008) implemented by Germany for the restructuring of WestLB AG. In that decision, the Commission took the position that, subject to a number of conditions, the notified aid in the form of a guarantee of EUR 5 billion is compatible with the common market.

In support of its application for annulment the applicant, one of the owners of WestLB AG, submits the following pleas in law:

— Infringement of the principle of collegiality enshrined in Article 219 EC, since the contested decision was not taken by the Commission as the materially competent body, but by the Commissioner for Competition;

— infringement of Article 87(1) EC, since the Commission did not examine whether competition would be distorted;

— errors in the application of the second alternative in Article 87(3)(b) EC, since the contested decision wrongly interpreted the facts as well as the content and normative structure of that provision; failed to undertake the mandatory review of proportionality and the mandatory balancing test, or undertook them in a manner that was inadequate; contained several errors of assessment and of judgment and imposed disproportionate conditions;

— infringed the principle of proportionality;

— infringed the principle of equal treatment, since the contested decision treats WestLB AG and its owners differently compared to other decisions adopted prior to the financial crisis and other decisions adopted during the present financial crisis, without objectively justified reasons being provided for that difference in treatment;

— infringement of Article 295 EC, since the condition requiring the present owners to sell their shares interferes with the property rights of the owners of WestLB AG as guaranteed and protected by Germany;

— infringement of Article 7(4) of Regulation (EC) No 659/1999, (1) which does not provide a substantive and sufficiently definite legal basis for such interference;

— infringement of the obligation to provide reasons under Article 253 EC.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1).
EN Official Journal of the European Union C 24/62

Action brought on 30 November 2009 — medi v OHIM (medi)

(Case T-470/09)

2010/C 24/110

Language in which the application was lodged: German

Parties

Applicant: medi GmbH & Co. KG (Bayreuth, Germany) (represented by H. Lindner und D. Terheggen, lawyers)

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

Form of order sought

— Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 October 2009 in Case R 692/2008-4, insofar as the complaint was dismissed;

— annul OHIM’s Decision of 26 February 2008 to refuse Community trade mark application No 5 378 021;

— allow publication in full of Community trade mark application No 5 378 021;

— order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘medi’ for goods and services in Classes 1, 3, 5, 9, 10, 17, 35, 38, 39, 41, 42 and 44 (Application No 5 378 021)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Partial annulment of the Examiner’s Decision

Pleas in law: Wrong application of Article 7(1)(b) of Regulation No 207/2009, (1) because the mark concerned does have the distinctive character required

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 24/56

Action brought on 9 November 2009 — Wind v OHIM — Sanyang Industry (Wind)

(Case T-451/09)

2010/C 24/101

Language in which the application was lodged: English

Parties

Applicant: Harry Wind (Selfkant, Germany) (represented by: J. Sroka, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sanyang Industry Co. Ltd (Hsinchu, Taiwan)

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 2009 in case R 1470/2008-4; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark “Wind”, for goods and services in classes 11, 12 and 37

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

Mark or sign cited: German trade mark registration of the figurative mark “Wind”, for services in class 37

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 40/04 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal failed to conclude that there was similarity between the goods and services covered by the Community trade mark concerned.
EN Official Journal of the European Union C 37/47

Action brought on 16 December 2009 — Völkl v OHIM- Marker Völkl (VÖLKL)

(Case T -504/09)

2010/C 37/68

Language in which the application was lodged: German

Parties

Applicant: Völkl GmbH & Co. KG (Erding, Germany) (represented by: C. Raßmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Marker Völkl International GmbH (Baar, Switzerland)

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 30 September 2009 in Case R 1387/2008-1;

— Annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market of 31 July 2008 on the opposition proceedings No B 1 003 153, in so far as the opposition was upheld;

— Refusal of the opposition;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Völkl GmbH & Co. KG

Community trade mark concerned: the word mark ‘VÖLKL’ for goods in classes 3, 9, 18 and 25 (Application No 4 403 705)

Proprietor of the mark or sign cited in the opposition proceedings: Marker Völkl International GmbH

Mark or sign cited in opposition: the word mark ‘VÖLKL’ (international trade mark No 571 440) for goods in classes 18, 25 and 28

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Annulment of the decision given by the Opposition Division concerning the determination of a likelihood of confusion of the signs which are compared and the referral back to the Opposition Division for further action; Dismissal of the appeal in relation to the decision on proof of use preserving the rights held

Pleas in law:

— Infringement of the principle that the parties delimit the subject-matter of the proceedings (Article 74(1) of Regulation (EC) No 40/94), (1) on the ground that the Board of Appeal should not have referred the proceedings back to the Opposition Division concerning goods in relation to which the opposition was not raised;

— Infringement of the prohibition of reformatio in pejus, on the ground that the Board of Appeal should not have referred the proceedings back to the Opposition Division concerning goods the registration of which the Opposition Division had already permitted;

— Infringement of the right to be granted a fair hearing (Article 38(3) and Article 73(2) of Regulation No 40/94);

— Infringement of Article 15(2)(a) and Article 43(2) and (3) of Regulation No 40/94 and Rule 22(2) of Regulation (EC) No 2868/95 (2), on the ground that the Board of Appeal erred in finding that the applicant has sufficiently proved that the opposition mark has been used in a manner which preserves its rights.

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1)
EN Official Journal of the European Union C 51/37

Action brought on 16 December 2009 — Carlyle v OHIM — Mascha & Regner Consulting (THE CARLYLE)

(Case T-506/09)

2010/C 51/71

Language in which the application was lodged: English

Parties

Applicant: The Carlyle, LLC (St. Louis, United States) (represented by: E. Cornu, E. De Gryse and D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mascha & Regner Consulting KEG (Vienna, Austria)

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 October 2009 in case R 240/2009-4; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the request for revocation: The word mark ‘THE CARLYLE’, for goods and services in classes 3, 25 and 42

Proprietor of the Community trade mark: The applicant

Party requesting the revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

Decision of the Cancellation Division: Partially rejected the request for revocation

Decision of the Board of Appeal: Revoked the Community trade mark concerned

Pleas in law: Infringement of Article 51(1)(a) of Council Regulation 207/2009, as the Board of Appeal erroneously employed a too restrictive interpretation of the concept of genuine use. Moreover, the Board of Appeal failed: (i) to take into consideration properly the evidence of use submitted by the applicant before the Cancellation Division; (ii) to assess correctly the scope of the said evidence of use; and (iii) to make an overall assessment thereof.