ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 13/16

Action brought on 28 September 2011 — Otero González v OHIM — Apli-Agipa (APLI-AGIPA)

(Case T-522/11)

2012/C 13/33

Language in which the application was lodged: Spanish

Parties

Applicant: José Luis Otero González (Barcelona, Spain) (represented by: S. Correa, lawyer)

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

Other party to the proceedings before the Board of Appeal: Apli-Agipa SAS (Dormans, France)

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 13 July 2011 in Case R 1454/2010-2 in relation to the partial granting of the application for the following goods ‘photographs, adhesives (glues) for stationery or household purposes; paint brushes, typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’;

— refuse Community trade mark application No 5676382 ‘APLI-AGIPA’ in respect of all the goods granted in Class 16;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Apli-Agipa SAS.

Community trade mark concerned: Word mark ‘APLI-AGIPA’ for goods in Class 16.

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

Mark or sign cited in opposition: Spanish word mark ‘AGIPA’ and Spanish figurative mark that contains the word element ‘a-agipa’, both for goods in Class 16.

Decision of the Opposition Division: Opposition upheld.

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

Plea in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is a likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 6/20

Action brought on 14 October 2011 — European Dynamics Luxembourg v ECB

(Case T-553/11)

2012/C 6/37

Language of the case: English

Parties

Applicant: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Central Bank

Form of order sought

— Annul the decision of the defendant to reject the joint application of the temporary grouping, led and represented by the applicant, filed in response to the call for applications to participate in the call for tender with reference number 14159/IS/2010 (OJ 2011/S 75-121894), in particular for the services covered by lot 1 of the said tender;

— Annul the decision of the defendant to reject the applicant’s appeal submitted in accordance with the appeal procedure as defined in section IV.2.1 of the abovementioned call for applications and under the conditions set out in Article 33 of Decision ECB/2007/5 (1);

— Annul all related decisions of the defendant;

— Order the defendant to pay damages to the applicant, pursuant to Articles 256, 268 and 340 TFEU, for loss of opportunity and damages to its reputation and credibility on account of the tender procedure in question for an amount of EUR 2 000 000,00;

— 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 four pleas in law.

1. First plea in law, alleging that the defendant infringed the obligation to state reasons and failed to disclose the relative merits of the successful candidates. In addition, the applicant alleged that the defendant used vague selection criteria, introduced new criteria during the evaluation and failed to comply with the provisions of Article 28(3) of the Decision ECB/2007/5. Finally, the applicant claims that the defendant infringed the rights of defence and the principle of transparency and good administration.

2. Second plea in law, alleging that the defendant committed manifest errors of assessment as it failed to comply with Article 25 of Decision ECB/2007/5 and with the tender specifications.

3. Third plea in law, alleging that the defendant infringed Article 20 of Decision ECB/2007/5 and the principle of sound administration.

4. Fourth plea in law, alleging that by dismissing its appeal as inadmissible, the defendant infringed Article 28(3) of the Decision ECB/2007/5.

(1) Decision of the European Central Bank of 3 July 2007 laying down the Rules on Procurement (OJ 2007 L 184, p. 34)
3.

Third plea in law, alleging violation of the right to an independent and impartial tribunal, as enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as any participation of the President of the Parliament in the decision making process in the present matter, or of anybody else who was present during the plenary session of 24 February 2010 and had formed a view, disabled such person from taking part in such process.
2.

Second plea in law, alleging disregard for the equality of arms of the parties by refusing to order the production, among others, of Ms K’s staff report for the period in which she exercised the function of director in Directorate ‘Security’ in DG ‘Justice, Freedom and Security’, whereas the Appointing Authority justifies the rejection of her application for that post by a plausible inaptitude in the light of her performance as acting director, while taking the view that she may be appointed to the post of director in Directorate ‘Justice’ in the same DG in the light of that same experience as director.
EN Official Journal of the European Union C 32/28

Action brought on 17 November 2011 — Phonebook of the World v OHIM — Seat Pagine Gialle (PAGINE GIALLE)

(Case T-589/11)

2012/C 32/58

Language in which the application was lodged: English

Parties

Applicant: Phonebook of the World (Paris, France) (represented by: A. Bertrand, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seat Pagine Gialle SpA (Milan, Italy)

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 4 August 2011 in case R 1541/2010-2;

— Annul the registration of the Community trade mark ‘PIAGINE GIALLE’ No 161380, registered in classes 16 and 35 by the other party to the proceedings before the Board of Appeal; and

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

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘PAGINE GIALLE’, for goods and services in classes 16 and 35 — Community trade mark registration No 161380

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 for invalidity pursuant to Article 52(1)(a) of Council Regulation (EC) No 207/2009, namely that the Community trade mark was registered in breach of the provisions of Article 7(1)(c) and (d) 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: Infringement of Articles 52(1)(a) in conjunction with Articles 7(1)(b) to 7(1)(d) of Council Regulation No 207/2009, as the Board of Appeal refused to apply the general principles of community law, and especially the principles set by the judgement rendered by the Court of First Instance in case T-322/03, Telefon & Buch/OHMI — Herold Business Data (WEISSE SEITEN), and also refused to apply its own findings, that the words ‘PAGINE GIALLE’ were devoid of any distinctive character for the Italian public.
—

Annul the decision of the Directorate-General for Translation of the European Parliament taken in the framework of call for tenders MT/2011/EU, concerning provision of translation services into Maltese, rejecting at the opening the offer submitted by the applicant for breach of confidentiality;
1.

First plea in law, alleging infringement of fundamental rights and procedural guarantees, in particular the right to be heard, rights of defence, the obligation to state reasons and the principle of effective judicial protection, in so far as the applicant has not received formal notification of his inclusion on the list of persons sanctioned and in so far as the defendant has not responded to the applicant’s questions and has not explained on what grounds the applicant’s name was added to the lists at issue.
—

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 applicant submits 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 applicant takes 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 109/14

Action brought on 30 December 2011 — VIP Car Solutions v Parliament

(Case T-668/11)

2012/C 109/33

Language of the case: French

Parties

Applicant: VIP Car Solutions SARL (Hoenheim, France) (represented by: G. Welzer, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

— order the European Parliament to pay EUR 1 408 000 to SARL VIP CAR SOLUTIONS;

— order the European Parliament to pay the costs.

Pleas in law and main arguments

The applicant seeks compensation for the material and non-material damage which it claims to have suffered as a result of the Parliament’s decision of 24 January 2007 to reject its tender submitted in the context of a tender procedure relating to transport for Members of the European Parliament in chauffeur-driven cars and minibuses during part-sessions in Strasbourg (PE/2006/06/UTD/1). (1) That decision was annulled by the judgment in Case T-89/07 VIP Car Solutions v Parliament. (2)

In support of the action, the applicant alleges serious fault on the part of the Parliament as follows, giving rise to loss:

— a breach of the obligation to notify the price offered by the successful tenderer;

— a breach of the obligation to state reasons, since the Parliament failed to give any information on the characteristics and relative advantages of the successful tender, and

— a manifest error of assessment, since the Parliament did not base its refusal decision on selection and award criteria defined in advance in the documents relating to the call for tenders.

(1) OJ 2006/S 177-187988.

(2) [2009] ECR II-1403.
—

consequently, grant the appellant the relief sought at first instance, namely: — annul the salary slip for January 2010 and the following months, in so far as these apply a pension increase of 0,6 %, in order to apply an increase of 2,1 % calculated in accordance with a lawful GSA [General Salary Adjustment]; — to the extent necessary, annul the decisions rejecting the requests for reconsideration and the complaints lodged by the appellant, decisions of 11 May 2010 and 9 September 2010 respectively; — order the ECB to pay the difference between the pension increase of 0,6 % granted unlawfully to the appellant as from January 2010 and that of 2,1 % to which he should have been entitled, namely a salary increase of 1,5 % per month as from January 2010. Those amounts should have interest applied as from their respective due dates until the date of actual payment, calculated on the basis of the rate set by the European Central Bank for main refinancing operations, applicable during the relevant period, plus 2 points;
EN Official Journal of the European Union C 165/20

Action brought on 5 March 2012 — Bial — Portela v OHIM — Probiotical (PROBIAL)

(Case T-113/12)

2012/C 165/35

Language in which the application was lodged: English

Parties

Applicant: Bial — Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal: Probiotical SpA (Novara, Italy)

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 20 December 2011 in case R 1925/2010-4;

— Order the defendant to refuse the grant of the registration of Community trade mark No 2408128 ‘PROBIAL’; and

— Order the other party to the proceedings before the Board of Appeal 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 dark blue and light blue ‘PROBIAL’, for goods in classes 1, 5 and 31 — Community trade mark application No 2408128

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

Mark or sign cited in opposition: Portuguese trade mark registration No 155284 of the word mark ‘Bial’, for goods in class 5; the trade mark ‘Bial’ being well known in Portugal; Community trade mark registration No 1400183 of the figurative mark in black and white ‘Bial’, for goods and services in classes 3, 5 and 42; Spanish trade mark registration No 2026481 of the figurative mark in black and white ‘Bial’, for services in class 35; international registration No 490635 for the mark in standard characters ‘Bial’, for goods in class 5; emblem of establishment No 868 of the figurative sign ‘Bial’; Name of establishment No 35157 for the word ‘Bial’; logotype No 951 of the figurative sign ‘Bial’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that the trademarks in question were not confusingly similar.
EN Official Journal of the European Union C 89/28

Action brought on 23 January 2012 — Pips v OHIM — s.Oliver Bernd Freier (ISABELLA OLIVER)

(Case T-38/12)

2012/C 89/47

Language in which the application was lodged: English

Parties

Applicant: Pips BV (Amsterdam, Netherlands) (represented by: J.A.K. van den Berg, lawyer)

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

Other party to the proceedings before the Board of Appeal: s.Oliver Bernd Freier GmbH & Co. KG (Rottendorf, 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 20 October 2011 in case R 2420/2010-1;

— Allow the Community trade mark application No 7024961 for the word mark ‘ISABELLA OLIVER’, for all the goods and services subject to the proceedings before the First Board of Appeal; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ISABELLA OLIVER’, for goods and services in classes 3, 4, 12, 14, 16, 18, 20, 21, 24 and 25 — Community trade mark application No 7024961

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 application No 6819908 of the word mark ‘S.Oliver’, for goods in classes 4, 16, 20, 21 and 24; Community trade mark registration No 4504569 of the figurative mark ‘s.Oliver’, for goods and services in classes 3, 6, 9, 14, 18, 20, 25, 28 and 35; German trade mark registration No 30734710.9 of the word mark ‘S.Oliver’, for goods in classes 10, 12 and 21; Community trade mark registration No 181875 of the word mark ‘S.Oliver’, for goods in classes 3, 6, 9, 14, 18, 20, 25 and 26; International trade mark registration No 959255 of the word mark ‘S.Oliver’, for goods in classes 10, 12 and 21

Decision of the Opposition Division: Partially rejected the CTM application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 76 of Council Regulation No 207/2009, as the Board of Appeal; (i) made an assessment of the similarity of the marks on the basis of facts/circumstances not provided by the parties, as a consequence of which the conclusion with regard to the similarity of signs is erroneous; and (ii) incorrectly applied the principles formulated by the ECJ in relation to overall assessment of likelihood of confusion.
EN Official Journal of the European Union C 80/22

Action brought on 16 January 2012 — Fomanu v OHIM (Qualität hat Zukunft)

(Case T-22/12)

2012/C 80/37

Language of the case: German

Parties

Applicant: Fomanu AG (Neustadt a.d. Waldnaab, Germany) (represented by T. Raible)

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

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 October 2011 in Case R 1518/2011-1;

— order OHIM to pay the costs of the these proceedings and those incurred before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Qualität hat Zukunft’ for goods and services in Classes 9, 16 and 40.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009, since the Community trade mark concerned is distinctive.
1.

First plea in law, alleging infringement of Articles 8(1)(k) and 73 of Regulation No 1094/2010 (1) in that those provisions require the defendant to publish on its website information relating to its activities in all the official languages of the European Union (EU). The applicant alleges a manifest error of assessment and an error of law in so far as the defendant justifies the refusal to publish the public consultations at issue in the applicant’s language, in particular on grounds of cost, whereas it is stated in Article 73(3) of Regulation No 1094/2010 that the translation services required for the functioning of the Authority are to be provided by the Translation Centre for the Bodies of the European Union.
EN Official Journal of the European Union C 165/26

Action brought on 26 March 2012 — Pro-Duo v OHIM — El Corte Inglés (GO!)

(Case T-141/12)

2012/C 165/46

Language in which the application was lodged: English

Parties

Applicant: Pro-Duo (Ghent, Belgium) (represented by: T. Alkin, Barrister)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, Spain)

Form of order sought

— Suspend the action pending the outcome of the Cancellation proceedings No 5011 C;

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 January 2012 in case R 1373/2011-4, insofar as it declined to suspend proceedings pending outcome of the Cancellation proceedings, or to annul the decision entirely; and

— Order the Opponent to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark in black, white and grey ‘GO!’, for goods in class 3 — Community trade mark application No 8859712

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 6070981 of the figurative mark ‘GO GLORIA ORTIZ’, for goods in class 3

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The Board of Appeal of the Office for Harmonisation in the Internal Market erred in law in failing to suspend the proceedings; and infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was a likelihood of confusion between the two trademarks.
EN Official Journal of the European Union C 194/23

Action brought on 10 April 2012 — Beyond Retro v OHIM — S&K Garments (BEYOND VINTAGE)

(Case T-170/12)

2012/C 194/39

Language in which the application was lodged: English

Parties

Applicant: Beyond Retro Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: S&K Garments, Inc. (New York, United States)

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 31 January 2012 joined cases R 493/2011-4 and R 548/2011-4; and

— Order the Office and the other party to the proceedings before the Board of Appeal to bear their own costs and pay those of the applicant.

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: International Registration of the word mark ‘BEYOND VINTAGE’, for goods and services in classes 14, 18 and 25 — Community trade mark application No W 994046

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

Mark or sign cited in opposition: Community trade mark registration No 5629035 of the word mark ‘BEYOND RETRO’, for goods and services in classes 25 AND 35

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the applicant’s appeal in case R 548/2011-4 and annulled the decision of the opposition division in case R 493/2011-4

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 109/30

Action brought on 17 February 2012 — GRE v OHIM — Villiger Söhne (LIBERTE brunes)

(Case T-78/12)

2012/C 109/61

Language in which the application was lodged: German

Parties

Applicant: GRE Grand River Enterprises Deutschland GmbH (Kloster Lehnin, Germany) (represented by: I. Memmler, lawyer)

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

Other party to the proceedings before the Board of Appeal: Villiger Söhne GmbH (Waldshut-Tiengen, Germany)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2011 in Case No R 2109/2010-1;

— 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 ‘LIBERTE brunes’ for goods in Classes 25, 30 and 34 (application No 6 462 171)

Proprietor of the mark or sign cited in the opposition proceedings: Villiger Söhne GmbH

Mark or sign cited in opposition: the word mark ‘LA LIBERTAD’ (Community trade mark No 1 456 664) and the figurative mark ‘La LIBERTAD’ (Community trade mark No 2 433 126) for goods in Classes 14 and 34

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 as there is no likelihood of confusion between the marks at issue.