ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 370/28

Action brought on 18 October 2011 — Evropaïki Dynamiki v Commission

(Case T-554/11)

2011/C 370/47

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Decision of the European Commission to refuse to execute the payments due to the applicant and instead to recover the amount already paid in the framework of the implementation of contract EuropeAid/124378/D/SER/TN (No 2007/145-464), communicated to the applicant by letter dated 8 August 2011 (Ref.: C&F/2011/D/001101) and the attached debit note;

— Annul all the relevant subsequent decisions of the defendant; and

— Order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with this application.

Pleas in law and main arguments

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

1. First plea in law, alleging that the defendant committed a manifest error of assessment when deciding that the applicant should reimburse a certain amount instead of being paid the amount due for work executed, approved and validated.

2. Second plea in law, alleging that the defendant misinterpreted the legal basis and its right to recover the requested amount, thereby infringing Article 79 of the Implementing Rules of the Financial Regulation (1) by failure to consider the confirmation on the time-sheets of the applicant’s experts and the volume of effort provided by them and validated adequately, even more so since no comments on the completed work were made in tempore non suspecto.

3. Third plea in law, alleging that the defendant infringed the principle of good administration, good faith and the principle of protection of legitimate expectations, as: — It refused to pay amounts due for validated and accepted work; — It failed to inform the applicant in due time on any doubts with regard to its obligation to pay the applicant the amounts verified by the auditor; and — It encouraged the applicant to continue its work for 12 months and to provide services, under the assumption that it would be paid for such work.

4. Fourth plea in law, alleging that the defendant infringed the obligation to state reasons, as well as the applicant’s rights of defence, as it refused the payment of due amounts and, instead, ordered the recovery of a certain amount from the applicant, without providing any analysis or justification of its decision on the respective amount.

5. Fifth plea in law, alleging that the execution of the contested decision constituted a misuse of powers.

(1) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)
EN Official Journal of the European Union C 362/19

Action brought on 7 October 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVALRY)

(Case T-530/11)

2011/C 362/29

Language in which the application was lodged: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, 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 14 July 2011 in case R 2334/2010-1, and remit the application to OHIM to allow it to proceed; and

— Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CHIVALRY’, for goods and services in classes 33, 35 and 41 — Community trade mark application No 6616593

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: United Kingdom trade mark registration No 1293610 of the figurative mark ‘CHIVALRY’, for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark ‘CHIVALRY SPECIAL RESERVE SCOTCH WHISKY’, for goods in class 33; Non-registered United Kingdom trade mark of the word ‘CHIVALRY’, used in the course of trade in respect of ‘Whisky’

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b), 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground 1, having found that the relevant consumer is ‘particularly brand-conscious and brand-loyal’, incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (iv) wrongly identified the word ‘CHIVALRY’ as the visually dominant element of the earlier mark and incorrectly concluded that the othe5 figurative and word elements play a secondary role; (v) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; and (vi) incorrectly assessed likelihood of confusion.
EN Official Journal of the European Union C 13/19

Action brought on 7 November 2011 — Oetker Nahrungsmittel v OHIM (La qualité est la meilleure des recettes)

(Case T-570/11)

2012/C 13/40

Language of the case: German

Parties

Applicant: Dr. August Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, lawyer)

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

Form of order sought

— Annul the decision of the Grand Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 July 2011 in Case R 1798/2010-G;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘La qualité est la meilleure des recettes’ for goods in Classes 16, 29, 30 and 32.

Decision of the Examiner: Partial refusal of the application.

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

Pleas in law: Infringement of Articles 7(1)(b) and 7(3) of Regulation No 207/2009, since the Community trade mark concerned is distinctive.
EN Official Journal of the European Union C 6/22

Action brought on 4 November 2011 — Gitana v OHIM — Rosenruist (GITANA)

(Case T-569/11)

2012/C 6/41

Language in which the application was lodged: English

Parties

Applicant: Gitana SA (Pregny-Chambésy, Switzerland) (represented by: F. Benech, lawyer)

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

Other party to the proceedings before the Board of Appeal: Rosenruist — Gestão e serviços, Lda (Funchal, Madeira)

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 4 August 2011 in case R 1825/2007-1, and authorise the registration of the Community trade mark application ‘GITANA’ No 3063344 for all the goods in classes 18 and 25; 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 figurative mark ‘GITANA’, for goods and services in classes 14, 16, 18, 21, 24, 25, 34 to 36 and 38 — Community trade mark application No 3063344

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 1609312 of the figurative mark ‘KITANA’, for goods in class 25; International trade mark registration No W00555706 of the figurative mark ‘KITANA’, for goods in classes 18 and 25; Italian trade mark registration No 531768 of the figurative mark ‘KITANA’, for goods in classes 18 and 25

Decision of the Opposition Division: Partially rejected the Community trade mark application

Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division and dismissed the appeal for the remaining

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.
Appeal brought on 28 November 2011 by Luigi Marcuccio against the order of the Civil Service Tribunal of 8 September 2011 in Case F-69/10, Marcuccio v Commission

(Case T-616/11 P)

(2012/C 25/124)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Grant all the appellant’s claims in the proceedings at first instance;

— Order the Commission to reimburse the appellant in respect of the costs incurred by him in the appeal proceedings;

— In the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on each of the claims referred to in the preceding paragraphs.

Pleas in law and main arguments

The present appeal is brought against the order of 8 September 2011 in Case T-69/10 dismissing as manifestly unfounded in law an action seeking, first, annulment of the decision by which the Commission rejected the appellant’s claim for compensation for the damage arising, in his view, as a result of the fact that, in the case giving rise to the judgment of 10 June 2008 in Case T-18/04 Marcucio v Commission, a note relating to the payment of the costs of those proceedings was sent to his legal representative in those proceedings and, second, an order that the Commission pay compensation for the damage.

The appellant relies on two grounds in support of his appeal.

1. First ground, alleging absolute failure to state reasons with regard to the ‘claims seeking compensation’ (between paragraphs 21 and 22 of the order under appeal) and manifest uncertainty, inconsistent reasoning, failure to conduct a proper investigation, distortion and misrepresentation of the facts, self-evident, illogical, irrelevant and unreasonable reasoning, incorrect and unreasonable interpretation and application of the rules of law relating to the incurring of Aquilian liability on the part of the institutions of the European Union, of the concept of the duty to state reasons incumbent on all European Union institutions and the European Union judicature, of the concept of analogy and of the concept of unlawful conduct on the part of a European Union institution.
Action brought on 10 November 2011 — Cheverny Investments v Commission

(Case T-585/11)

(2012/C 25/115)

Language of the case: German

Parties

Applicant: Cheverny Investments (St Julians, Republic of Malta) (represented by: H. Prinz zu Hohenlohe-Langenburg, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Commission Decision K(2011)275 of 26 January 2011 on State aid C-7/10 relating to the fiscal carry-forward of losses (‘Sanierungsklausel’), addressed to the Federal Republic of Germany;

— alternatively, annul Commission Decision K(2011)275 of 26 January 2011 on State aid C-7/10 addressed to the Federal Republic of Germany inasmuch as on interpretation of national law the carry-forward of losses under Paragraph 8c(1a) of the Law on corporation tax (Körperschaftssteuergesetz, ‘KStG’) does not apply only to companies which are over-indebted or insolvent or are likely to become insolvent, but a carry-forward of losses within the meaning of Paragraph 8c(1a) leads, in so far as the further conditions are met, to a retention of the carry-forward of losses in the event of a change of share owner also for companies whose insolvency or over-indebtedness is avoidable, thus merely imminent;

— order the Commission to pay the applicant’s necessary costs under Article 87(2)(1) of the Rules of Procedure.

Pleas in law and main arguments

In support of the action, the applicant claims that the Commission made an error of assessment by incorrectly finding in its analysis of Paragraph 8c(1a) of the KStG that the carry-forward of losses constituted State aid, in that it

— assumed that the provision which it objected to concerns only companies which are insolvent or likely to become insolvent, but not also those for which insolvency or over-indebtedness are merely imminent;

— assumed selectivity on the basis that the reference system used is Paragraph 8c of the KStG and not the Law on corporation tax.

In addition, the applicant claims that the Commission made errors of assessment in the contested decision, in that

— the Commission did not determine the reference system in the light of the KStG and taking account of its own Notice on the application of the State aid rules to measures relating to direct business taxation (OJ 1998 L 384, p.3) and its proposal for a Council Directive on a common consolidated corporate tax base (CCCTB);

— did not find that the carry-forward of losses was justified by the disruption to the general economic equilibrium of 2009.

In the applicant’s opinion, in the light of the foregoing, the Commission infringed Article 107(1) TFEU.
In support of the appeal, the appellant relies on two pleas in law.

First plea in law, alleging a manifest error in the assessment of the facts, since the CST took the view that the appellant could not rely on the emergence of a new fact consisting in the judgment delivered by the General Court on 19 June 2007 in Case T-473/04 Asturias Cuerno v Commission, not published in the ECR. The appellant submits that that judgment constitutes a new fact, since the judgment concerns the same situation as that of the appellant and since the main part of the analysis in that judgment concerns an objective point and not facts particular to the case.

Second plea in law, alleging a manifest error in law, since the CST gave absolute priority to the discretion based on the principle of the autonomy of the Appointing Authority over the principle of unity of the civil service.
1.

First plea in law, alleging infringement of Article 107(1) TFEU: the provision enabling the fiscal carry forward of losses is not State aid The applicants submit in this connection inter alia that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) does not have the selective effect required by Article 107(1) TFEU as it does not favour certain undertakings or the production of certain goods. In addition, the applicants take the view that the provision enabling the fiscal carry forward of losses does not constitute an exception to the reference system under German tax law of the fundamentally unrestricted carry forward of losses and the transfer of losses between different tax periods, but helps to give effect to that reference system.
EN Official Journal of the European Union C 32/39

Action brought on 2 December 2011 — BSH v OHIM (ecodoor)

(Case T-625/11)

2012/C 32/77

Language of the case: German

Parties

Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by S. Biagosch, lawyer)

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) (OHIM) of 22 September 2011 in Case R 340/2011-1;

— Order OHIM to bear its own costs and to pay the costs of the applicant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘ecoDoor’ for goods in Classes 7, 9 and 11

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009, since the Community mark concerned is distinctive and not purely descriptive.
EN Official Journal of the European Union C 58/11

Action brought on 21 December 2011 — Smart Technologies/OHMI (SMART NOTEBOOK)

(Case T-648/11)

2012/C 58/21

Language of the case: English

Parties

Applicant: Smart Technologies ULC (Calgary, Canada) (represented by: M. Edenborough, QC, T. Elias, Barrister, and R. Harrison, Solicitor)

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 29 September 2011 in case R 942/2011-1;

— In the alternative, alter the contested decision of the First Board of Appeal to state that the application possesses sufficient distinctive character that no objection to its registration may be raised under Articles 7(1)(b) or (c) of the Regulation; and

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SMART NOTEBOOK’ for goods in class 9 — Community trade mark application No 9049313

Decision of the Examiner: Rejected the Community trade mark application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that the Community trade mark application was devoid of any distinctive character. Further, the applicant submits that the application is not descriptive of the applicant’s goods, rather it has a distinctive character that enables the application to function as an indication of trade origin for the goods in question. In particular the applicant submits that the Board: (a) applied the wrong test when considering whether or not a mark was descriptive of the goods for which registration was sought; (b) failed to consider the fact that the applicant had a family of ‘Smart’ marks, and wrongly confused this issue with the concept of acquired distinctiveness under Article 7(3) of the Regulation; and (c) wrongly dismissed the submission relating to legitimate expectation in the circumstances where the other marks upon which reliance was placed were all owned by the applicant, as opposed to marks owned by third parties.
—

The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicants submit inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicants take the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid.
EN Official Journal of the European Union C 98/22

Action brought on 20 December 2011 — Commission v OHIM — Ten ewiv (TEN)

(Case T-658/11)

2012/C 98/36

Language in which the application was lodged: English

Parties

Applicant: European Commission (represented by: A. Berenboom, A. Joachimowicz and M. Isgour, lawyers, J. Samnadda and F. Wilman, Agents)

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

Other party to the proceedings before the Board of Appeal: Ten ewiv (Rösrath-Hoffnungstahl, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 October 2011 in case R 5/2011-4;

— Declare therefore invalid the Community trademark No 6750574 registered on 5 February 2009 by the other party to the proceedings before the Board of Appeal in classes 12, 37 and 39; and

— Order the defendant to pay 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 ‘TEN’ in the colours ‘blue, yellow, black’, for goods and services in classes 12, 37 and 39 — Community trade mark registration No 6750574

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 on absolute grounds laid down in Article 52(1)(a) in conjunction with Article 7(1)(c) and (h) of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The contested decision infringes Article 7(1)(h) of Council Regulation No 207/2009 in conjunction with Article 6 ter (1) of the Paris Convention in so far as the Community trade mark (‘CTM’) has been registered, although its registration falls within the scope of prohibition laid down in those provisions. The contested decision also violates Article 7(1)(g) in so far as such a registration would deceive the public by making them believe that the products and services for which the CTM is registered are approved or endorsed by the European Union or one of its institutions.
—

find the present application and the accompanying documents to be duly lodged and admissible, take note that an action has been brought against the Decision of 6 October 2011 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) in Case R 641/2011-1 and, following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs.