ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 282/35

Action brought on 26 July 2011 — Elti v Delegation of the European Union to Montenegro

(Case T-395/11)

2011/C 282/69

Language of the case: English

Parties

Applicant: Elti d.o.o. (Gornja Radgona, Republic of Slovenia) (represented by: N. Zidar Klemenčič, lawyer)

Defendant: European Union, represented by the Delegation of the European Union to Montenegro

Form of order sought

— Declare the defendant in violation of Article 2 and 30(3) of Directive 2004/18/EC (1);

— Annul the negotiation procedure conducted in the framework of the tender procedure ‘Support to the Digitalisation of the Montenegrin Public Broadcasting — Supply of equipment, Montenegro’ (reference EuropaAid/129435/C/SUP/ME-NP) (OJ 2010/S 178-270613), since the applicant had not been given an equal treatment and, as a result, it had not been able to correct/explain its tender;

— Annul the contract award decision in the above mentioned tender procedure;

— In the event the contract had already been concluded, to declare such contract null and void;

— In the alternative, if the contract had already been carried out when the Court gives judgment, or the decision can no longer be declared void, declare the defendant in violation of Article 2 and 30(3) of Directive 2004/18/EC and order defendant to pay the applicant damages of EUR 172 541,56 as compensation for the loss suffered by the applicant in regard to that procedure; and

— Order the defendant to pay the applicant’s costs, including the costs of any intervening party.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law.

1. First plea in law, alleging that the defendant violated Articles 2 and 30(3) of Directive 2004/18/EC, as: — Information relevant for submitting the offer was not made available to all participants in the public procurement procedure in the same manner and quality; — The successful tenderer was provided information in a discriminatory manner which gave it an advantage as it was able to correct its tender; and — The negotiation procedure was conducted in such a way that the defendant influenced the outcome of the procedure by requesting additional information or clarifications from only certain participants, thereby violating the principle of non-discrimination and transparency.

(1) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)
EN Official Journal of the European Union C 282/35

Action brought on 26 July 2011 — Masottina v OHIM — Bodegas Cooperativas de Alicante (CA' MARINA)

(Case T-393/11)

2011/C 282/68

Language in which the application was lodged: English

Parties

Applicant: Masottina SpA [Conegliano (TV), Italy] (represented by: N. Schaeffer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bodegas Cooperativas de Alicante, trading as Coop. V. BOCOPA (Alicante, Spain)

Form of order sought

— Annul and rescind the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in case R 518/2010-1, as well as the decision of the Opposition Division of 2 February 2010

— Decline and reject the action formed by Bodegas Cooperativas de Alicante, Coop. V. BOCOPA, and by which it opposed the registration of the trademark ‘CA’ MARINA’, and admit the application for registration of the Community trademark No 6375216 to which Masottina SpA shall be entitled; and

— Sentence Bodegas Cooperativas de Alicante, Coop. V. BOCOPA, to payment of all court and related costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CA’ MARINA’, for goods in class 33 — Community trade mark application No 6375216

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 1796374 of the word mark ‘MARINA ALTA’, for goods in class 33

Decision of the Opposition Division: Rejected the CTM application for all the goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94, as the Board of Appeal erroneously applied the above mentioned Article: (i) as regards the absence or at least an insufficient determination and distinction of the trademark ‘MARINA ALTA’; (ii) as there is no existence of any risk of confusion in respect of the concerned signs; and (iii) regarding the lacking consideration that there does not exist any identity of the merchandises, their respective channels of distribution and the public of reference.
3.

Third plea in law: the contested measures restrict the applicant’s fundamental rights in an unjustified and disproportionate manner, in particular his right to property, provided for in Article 1 of the First Additional Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the European Union, his right to respect for his good name and reputation, provided for in Articles 8 and 10 of the ECHR, his freedom to engage in work and conduct his business provided for in Articles 15 and 16 of the Charter of Fundamental Rights of the European Union and, lastly, the principle of the presumption of innocence provided for in Article 6 of the ECHR and Article 48 of the Charter of Fundamental Rights of the European Union
2.

Second plea in law, alleging that by failing to include any statement of reasons in the contested measures, the defendant has infringed the applicant’s right of defence, as: — The absence of any justification prevents the applicant to effectively make known his view on the information or material against it; and — These failures constitute a fundamental breach of the defendant’s obligations in relation to the contested measures and render such invalid in so far as they apply to the applicant.
EN Official Journal of the European Union C 298/19

Action brought on 22 July 2011 — ultra air v OHIM — Donaldson Filtration Deutschland (ultrafilter international)

(Case T-396/11)

2011/C 298/35

Language in which the application was lodged: German

Parties

Applicant: ultra air GmbH (Hilden, Germany) (represented by: C. König, lawyer)

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

Other party to the proceedings before the Board of Appeal: Donaldson Filtration Deutschland GmbH (Haan, Germany)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 18 May 2011, notified on 20 May 2011, in Case R 374/2010-4;

— Reject the objection lodged on 16 March 2010 by Donaldson Filtration Deutschland GmbH against the decision of the Cancellation Division of OHIM of 29 January 2010 in cancellation proceedings No 2880 C;

— Order OHIM and Donaldson Filtration Deutschland GmbH, should it intervene in the present case, 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 word mark ‘ultrafilter international’ for goods and services in Classes 7, 11, 37, 41 and 42 — Community trade mark No 1 121 839

Proprietor of the Community trade mark: Donaldson Filtration Deutschland GmbH

Applicant for the declaration of invalidity of the Community trade mark: the applicant

Grounds for the application for a declaration of invalidity: the application is based on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) and (3) of Regulation No 207/2009 as the contested word mark is descriptive

Decision of the Cancellation Division: the application for a declaration of invalidity was granted

Decision of the Board of Appeal: the Cancellation Division’s decision was annulled and the application for a declaration of invalidity was rejected

Pleas in law: Infringement of Article 7(1) and (3), 52(1)(a), 56(1)(a), 75(1) and 83 of Regulation No 207/2009
EN Official Journal of the European Union C 298/26

Action brought on 8 August 2011 — Szajner v OHIM — Forge de Laguiole (LAGUIOLE)

(Case T-453/11)

2011/C 298/49

Language in which the application was lodged: French

Parties

Applicant: Gilbert Szajner (Saint-Maur-des-Fossés, France) (represented by: A. Lakits-Josse, lawyer)

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

Other party to the proceedings before the Board of Appeal: Forge de Laguiole SARL (Laguiole, France)

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 of 1 June 2011 in so far as it stated that Community trade mark No 2 468 379 is declared invalid in respect of the goods covered by the application for annulment in Classes 8, 14, 16, 18, 20, 21, 28 and 34;

— Order Forge de Laguiole to bear its own costs and to pay the costs incurred by Mr Szajner, including the costs of representation.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘LAGUIOLE’ for goods and services in, inter alia, Classes 8, 14, 16, 18, 20, 21, 28, 34 and 38 — Community trade mark No 2 468 379.

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity of the Community trade mark: Forge de Laguiole SARL.

Grounds for the application for a declaration of invalidity: the application for a declaration of invalidity was made on the basis of Article 53(1)(c) and Article 8(4) of Regulation No 207/2009, based on the business name of Forge de Laguiole.

Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity.

Decision of the Board of Appeal: partial annulment of the Cancellation Division’s decision and declaration that Community trade mark No 2 468 379 is invalid in part.

Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009 in so far as, first, the Board of Appeal incorrectly found that the business name of Forge de Laguiole was not subject to the principle of speciality and that the name could be protected in respect of business activities not actually carried out by Forge de Laguiole and, secondly, there is no likelihood of confusion between the business name of Forge de Laguiole, used in respect of knives, and the trade mark ‘LAGUIOLE’, registered in respect of goods unrelated to cutlery.
EN Official Journal of the European Union C 319/24

Action brought on 6 September 2011 — Oster Weinkellerei v OHIM — Viñedos Emiliana (Igama)

(Case T-474/11)

2011/C 319/51

Language in which the application was lodged: German

Parties

Applicant: Andreas Oster Weinkellerei KG (Cochem, Germany) (represented by: N. Schindler, lawyer)

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

Other party to the proceedings before the Board of Appeal: Viñedos Emiliana, SA (Santiago, Chile)

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 22 June 2011 in Case R 637/2010-2;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and pay the applicant’s costs;

— In the alternative, stay the proceedings until delivery of a legally binding decision in the invalidity proceedings pending before OHIM concerning filing reference 000005716 C.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Igama’ for goods in Class 33.

Proprietor of the mark or sign cited in the opposition proceedings: Viñedos Emiliana, SA.

Mark or sign cited in opposition: Word mark ‘GAMMA’ for goods in Class 33.

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, since there is no likelihood of confusion between the marks at issue.
EN Official Journal of the European Union C 340/25

Action brought on 9 September 2011 — France v Commission

(Case T-478/11)

2011/C 340/53

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues, J Gstalter and J. Rossi, acting as Agents)

Defendant: European Commission

Form of order sought

— Annul the contested decision;

— Order the Commission to pay the costs.

Pleas in law and main arguments

By its application, the applicant seeks annulment of Commission Decision C(2011) 4376 final of 29 June 2011 relating to State aid No NN 10/2010 concerning the action taken by the interprofession nationale porcine (French pig and pork producers association) (‘INAPORC’), which is financed by ‘voluntary’ contributions which have been made compulsory (‘CVCs’), levied by INAPORC on the members it represents. The Commission considered the CVCs to be measures constituting State aid compatible with the internal market.

In support of the action, the applicant puts forward a single plea in law, alleging that the concept of State aid within the meaning of Article 107(1) TEU was misapplied when the Commission held that the action taken by INAPORC, using income deriving from the CVCs, was imputable to the State and was financed by State resources.

The applicant argues that the action taken by INAPORC, using income deriving from the CVCs, meets the requirements set by the Court of Justice in Case C-345/02 Pearle and Others [2004] ECR I-7139 if compulsory contributions levied by a body representing undertakings in an economic sector are not to be regarded as State resources which finance action imputable to the State, since:

— the action taken by INAPORC is determined by the professional body which represents undertakings in the agricultural sector concerned and is not an instrument for implementing State policy;

— the action taken by INAPORC is financed by means of resources collected from undertakings in the sector;

— the financing arrangements and the percentage/quantity of the contributions is established within INAPORC without the State intervening in any way;
EN Official Journal of the European Union C 331/24

Action brought on 19 August 2011 — Scandic Distilleries v OHMI — Bürgerbräu, August Röhm & Söhne (BÜRGER)

(Case T-460/11)

2011/C 331/46

Language in which the application was lodged: English

Parties

Applicant: Scandic Distilleries SA (Bihor, Romania) (represented by: Á. László, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bürgerbräu, August Röhm & Söhne KG (Bad Reichenhall, Germany)

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 25 May 2011 in case R 1962/2010-2 and render the registration of the trade mark application as a Community trade mark with regard to all goods and services concerned;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘BÜRGER ORIGINAL PREMIUM PILS TRADITIONAL BREWED QUALITY REGISTERED TRADEMARK SIEBENBURGEN’, for goods and services in classes 32 and 35 — Community trade mark application No 8359663

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 1234061 of the word mark ‘Bürgerbräu’, for goods and services in classes 21, 32 and 42

Decision of the Opposition Division: Partially upheld 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 established the existence of likelihood of confusion
EN Official Journal of the European Union C 355/20

Action brought on 21 September 2011 — ‘Rauscher’ Consumer Products v OHIM (Representation of a tampon)

(Case T-492/11)

2011/C 355/36

Language of the case: German

Parties

Applicant:‘Rauscher’ Consumer Products GmbH (Vienna, Austria) (represented by M. Stütz, lawyer)

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 20 July 2011 in Case R 2168/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: figurative mark, representing a tampon, for goods in Classes 3 and 5

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 No 207/2009 as the Community trade mark concerned has distinctive character
EN Official Journal of the European Union C 347/37

Action brought on 19 September 2011 — Streng v OHIM — Gismondi (PARAMETRICA)

(Case T-495/11)

2011/C 347/67

Language in which the application was lodged: English

Parties

Applicant: Michael Streng (Erding, Germany) (represented by: A. Pappert, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fulvio Gismondi (Roma, 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 19 July 2011 in case R 1348/2010-4, and refer the case back to the Fourth Board of Appeal; and

— Order the defendant to pay the costs.

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 word mark ‘PARAMETRICA’, for services in classes 36 and 42 — Community trade mark application No 6048433

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

Mark or sign cited in opposition: German trade mark registration No 30311096 of the word mark ‘parameta’, for services in classes 35, 38, 41 and 42

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

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

Pleas in law: Infringement of Rules 19(2) and (3) in connection with Rule 98(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly considered that the submitted documents containing WIPO INID codes are not in the language of the proceedings and/or taken together with the translation provided in the writ of 3 November 2008, do not constitute ‘translation’ within the meaning of Rule 98(1) CTMIR.
EN Official Journal of the European Union C 370/25

Action brought on 7 October 2011 — Luxembourg Patent Co. v OHIM — DETEC (FIREDETEC)

(Case T-527/11)

2011/C 370/43

Language in which the application was lodged: English

Parties

Applicant: Luxembourg Patent Co. SA (Lintgen, Luxembourg) (represented by: K. Manhaeve, lawyer)

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

Other party to the proceedings before the Board of Appeal: Sistemas de Seguridad, Detección y Extinción de Incendios, SL (DETEC) (Madrid, Spain)

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 26 July 2011 in case R 736/2010-4 insofar as it has declared the opponent’s opposition successful against the applicant’s trademark application for ‘fire-extinguishing apparatus; fire-extinguishing apparatus for automatic and independent detection and extinguishing of fires’ in class 9 and ‘development of fire extinguishers and fire extinguishing apparatus’ in class 42; and

— Order the defendant and — if applicable — the other party to the proceedings before the Board of Appeal to jointly and severally pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FIREDETEC’ for goods in classes 1, 9, 17 and 42 — Community trade mark application No 4904389

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: Spanish trade mark registration No 1759982 of the figurative mark ‘DETEC’, for goods in class 9; Spanish trade mark registration No 1759983 of the figurative mark ‘DETEC’, for services in class 37; Community trade mark registration No 3813219 of the figurative mark ‘DETEC Sistemas de Seguridad, Detección y Extinción de Incendios, SL’, for goods and services in classes 9, 37 and 45

Decision of the Opposition Division: Partially upheld 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 the existence of likelihood of confusion between the applied mark and the opposed mark.
Second plea: manifest errors in the application of the exceptions laid down in Regulation (EC) No 1049/2001 (1)

Second, the Commission made manifest errors when applying the exceptions laid down in Regulation No 1049/2001. By applying the exceptions too broadly, the Commission disregarded the principles developed in the case-law concerning access to documents and the importance of the fundamental right of access to documents laid down in Article 42 of the Charter of Fundamental Rights.

In the light of fundamental rights and of the principle of transparency and the rule of law, the applicant should be granted a right of access to the documents which is as extensive as possible.
EN Official Journal of the European Union C 13/16

Action brought on 31 October 2011 — Atlas v OHIM — Couleurs de Tollens-Agora (ARTIS)

(Case T-558/11)

2012/C 13/35

Language in which the application was lodged: Polish

Parties

Applicant: Atlas sp. z o.o. (Łódź, Republic of Poland) (represented by: R. Rumpel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Couleurs de Tollens-Agora S.a.s. (Clichy, France)

Form of order sought

The applicant claims that the Court should:

— declare the action well founded;

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 July 2011, served on the applicant on 7 September 2011, in Case R 1253/2010-1;

— in the alternative, amend the contested decision by granting registration of the mark ‘ARTIS’;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Atlas sp. z o.o.

Community trade mark concerned: word mark ‘ARTIS’ for goods in Classes 2 and 17 — application No 6158761

Proprietor of the mark or sign cited in the opposition proceedings: Couleurs de Tollens-Agora S.a.s.

Mark or sign cited in opposition: French word mark ‘ARTIS’ registered under No 93 484 880 for goods in Classes 1 and 19

Decision of the Opposition Division: opposition upheld

Decision of the Board of Appeal: appeal dismissed

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009 (1) with regard to establishing the similarity of the trade marks and the likelihood of confusion on the part of consumers

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).