ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 147/27

Action brought on 21 March 2013 — Benelli Q.J./OHIM — Demharter (MOTOBI)

(Case T-170/13)

2013/C 147/49

Language in which the application was lodged: English

Parties

Applicant: Benelli Q.J. Srl (Pesaro, Italy) (represented by: P. Lukácsi, lawyer)

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

Other party to the proceedings before the Board of Appeal: Demharter GmbH (Dillingen, Germany)

Form of order sought

The applicant claims that the Court should:

— Alter the defendant’s decision and order the dismissal of the application for revocation filed by the cancellation applicant;

— Annul the defendant’s decision and remit the case to OHIM for further examination and a new decision should the Court consider that it is inevitable to conduct another thorough analysis of the evidence of genuine use;

— Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘MOTOBI’ for goods in class 12 — Community trade mark registration No 835 264

Proprietor of the Community trade mark: The applicant

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

Decision of the Cancellation Division: Revoked the Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 51(1)(a) of Council Regulation No 207/2009.
3.

Third plea in law, alleging that the Council has violated the applicant’s rights of defence, right to a fair hearing and right to effective judicial protection. The applicant has neither been informed nor notified of any possible evidence adduced against him to justify the measure adversely affecting him. The Council neither granted the applicant access to its file nor provided him with the requested documents (including precise and personalised information justifying the disputed restrictive measures) nor disclosed to him the possible evidence adduced against him. The applicant was denied to be heard by the Council as he expressly requested it. The abovementioned violation of the applicant’s rights of defence — notably the failure to inform the applicant of the evidence adduced against him — results in a violation of the applicant’s right to effective judicial protection.
1.

First plea in law, alleging a breach of the obligation to state reasons, of the principle of good administration, in particular in that it imposes a duty of consistency, of the principle of audi alteram partem, and an infringement of the applicant’s legitimate expectations and of the principle of fairness when the Commission, on the first occasion, in its letter of 2 April 2013 following its decision of 15 February 2013, rejected as non-eligible project No 25, proposed by the applicant to fulfil the technical capacity criterion, thus bringing the number of projects eligible as reference projects below the minimum necessary.
2.

Second plea in law, alleging an infringement of the Treaty and of the law relating to its application: — The applicant claims that the Commission’s decision infringes European Union law in the following ways: (a) It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; (b) It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; (c) It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; (d) It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; (e) It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; (f) It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines.
EN Official Journal of the European Union C 156/52

Appeal brought on 8 April 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 28 January 2013 in Case F-95/12, Marcuccio v Commission

(Case T-204/13 P)

2013/C 156/96

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commision

Form of order sought by the appellant

The appellant claims that the Court should:

— Annul in its entirety and without exception the order under appeal;

— Refer the case back to the Civil Service Tribunal.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those set out in Case T-203/13 P Marcuccio v Commission.
2.

Further, the applicant submits that, in the event that the defendant’s decision on the approval of flight conditions is a discretionary decision, the defendant failed to exercise its discretion, or in any event exercised it erroneously. In the applicant’s view, the defendant exercises its discretion erroneously when it relies on safety information obtained during the type-certification process, to which the applicant was not a party. In addition, the applicant complains that the defendant has failed sufficiently to particularise the alleged safety concerns in the present proceedings. In that context, the applicant submits that it was given no opportunity to comment on specific alleged sources of risk. The applicant also claims that the defendant’s reasoning is manifestly contradictory.
EN Official Journal of the European Union C 171/34

Action brought on 8 April 2013 — Stance/OHIM — Pokarna (STANCE)

(Case T-206/13)

2013/C 171/63

Language in which the application was lodged: English

Parties

Applicant: Stance, Inc. (San Clemente, United States) (represented by: R. Kunze and G. Würtenberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: Pokarna Ltd (Secundrabad, India)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fifth Board of Appeal of 1 February 2013 in Case R 885/2012-5 pertaining to the opposition based on Community trademark registration No. 005 491 329 against Community trademark application No. 008 957 516‘STANCE’;

— 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 word mark ‘STANCE’ for goods in class 25 — Community trade mark application 8 957 516

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 of the black and white figurative mark ‘STANZA’, for goods and services in classes 25 et 35

Decision of the Opposition Division: Upheld the opposition for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 65, 8(1)(b), 75, 76(1), (2) and 83 of Council Regulation No 207/2009.
EN Official Journal of the European Union C 156/53

Action brought on 15 April 2013 — Eni v Commission

(Case T-211/13)

2013/C 156/99

Language of the case: Italian

Parties

Applicant: Eni SpA (Rome, Italy) (represented by: G.M. Roberti and I. Perego, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— declare the action admissible;

— annul the contested measures;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action contests the Commission’s decision of 26 February 2013 to reopen the procedure (C(2013) 1200 final) and the statement of objections of 26 February 2013 (C(2013) 1199) relating to a proceeding pursuant to Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement, adopted in Case AT.40032-BR/ESBR.

In support of the application, Eni alleges lack of competence, arguing that the Commission cannot reopen the procedure in order to amend the decision adopted in Case BR-ESBR in 2006 and, at the same time, to adopt a decision re-imposing the increase in the fine for repeated infringements.

Eni submits that in the judgment of 13 July 2011 (Case T-39/07), in addition to annulling in part the 2006 BR-ESBR decision on the basis that the Commission had failed to make a correct assessment of the aggravating circumstance of repeated infringement, the General Court exercised its jurisdiction in relation to the merits — under Article 261 TFEU and Article 31 of Regulation No 1/2003 — by re-determining the amount of the fine and substituting its own assessment for that made by the Commission. In addition to being in breach of those findings, the contested measures are also contrary to Article 266 TFEU, to the principle governing the attribution of powers and ensuring institutional balance, referred to in Article 13 TFEU, as well as to the fundamental right to fair legal process laid down in Article 6 ECHR and Article 47 of the Charter of Fundamental Rights and to the ne bis in idem principle laid down in Article 7 ECHR.

Eni also claims that, contrary to the assertions made by the Commission, the General Court did not merely find that there had been a procedural defect in the Commission’s application of the concept of repeated infringement in the 2006 BR-ESBR decision; the Commission’s action is therefore based on a wholly erroneous legal and factual premiss and, from that point of view, too, is contrary to Article 7 ECHR.
EN Official Journal of the European Union C 171/35

Action brought on 15 April 2013 — Typke v Commission

(Case T-214/13)

2013/C 171/65

Language of the case: English

Parties

Applicant: Rainer Typke (Hasbergen, Germany) (represented by: B. Cortese and A. Salerno, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the European Commission of 5 February 2013 denying applicant’s confirmatory application for access to documents pursuant to Regulation (EC) No 1049/2001 (1) — in the procedure GESTDEM 2012/3258;

— Annul the implied negative decision of the European Commission of 13 March 2013 on applicant’s confirmatory application for access to documents pursuant to Regulation (EC) No 1049/2001 — in the procedure GESTDEM 2013/0068;

— Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging violation of Articles 2 and 4 of Regulation (EC) No 1049/2001, as well as of other provisions of the said regulation, as:

— The Commission’s assumption that the applicant’s request would not fall within the realm of the Regulation (EC) No 1049/2001, implying the creation of new documents instead of the access to existing ones, is unfounded;

— The Commission’s assumption that the applicant’s requests would be disproportionate, therefore inadmissible, even if considering the possibility of granting partial access, is unfounded;

— The Commission’s assumption that the applicant’s requests would be barred by the need not to disclose third parties’ personal data is unfounded; and

— The Commission’s assumption that the applicant’s requests would be barred by the need to preserve the confidentiality of the proceedings of the Selection Board, and by the need to protect the latter’s decision making process, is unfounded.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)
EN Official Journal of the European Union C 171/35

Action brought on 16 April 2013 — Scuola Elementare Maria Montessori v Commission

(Case T-220/13)

2013/C 171/66

Language of the case: Italian

Parties

Applicant: Scuola Elementare Maria Montessori (Rome, Italy) (represented by: A. Nucara and E. Gambaro, lawyers)

Defendant: European Commission

Pleas in law

The pleas in law and main arguments are the same as those relied on in Case T-219/13 Ferracci v Commission.
EN Official Journal of the European Union C 207/42

Action brought on 3 May 2013 — Matratzen Concord v OHIM — KBT (ARKTIS)

(Case T-258/13)

2013/C 207/70

Language in which the application was lodged: German

Parties

Applicant: Matratzen Concord GmbH (Cologne, Germany) (represented by: I. Selting, lawyer)

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

Other party to the proceedings before the Board of Appeal: KBT & Co. Ernst Kruchen agenzia commerciale sociétá in accomandita (Locarno, Switzerland)

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 (Trade Marks and Designs) of 4 March 2013 in Case R 2133/2011-4;

— Order the defendant to pay the costs including those incurred in the course of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: the word mark ‘ARKTIS’ for goods in Classes 20 and 24 — Community trade mark No 2 818 680

Proprietor of the Community trade mark: KBT & Co. Ernst Kruchen agenzia commercial sociétá in accomandita

Party applying for revocation of the Community trade mark: the applicant

Decision of the Cancellation Division: the application was upheld in part

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 51(1)(a) of Regulation No 207/2009
EN Official Journal of the European Union C 178/12

Action brought on 15 April 2013 — Deutsche Rockwool Mineralwoll/OHIM — Recticel (Lambda)

(Case T-215/13)

2013/C 178/23

Language in which the application was lodged: English

Parties

Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Recticel SA (Brussels, Belgium)

Form of order sought

The applicant claims that the Court should:

— Set aside the decision of the defendant, R 112/2012-5, and

— Impose the costs on the defendant.

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: The figurative mark representing the Greek letter lambda in red and white colours, Community trade mark registration No 2 960 789

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

Party applying for revocation of the Community trade mark: The applicant

Decision of the Cancellation Division: Partially revoked the Community trade mark

Decision of the Board of Appeal: Partially dismissed the appeal

Pleas in law: Infringement of Article 51(1)(a) of Council Regulation No 207/2009.
1.

First plea in law, alleging breach of the first subparagraph of Article 7(4) of Regulation (EC) No 1258/1999 (1) and of Article 31(1) of Regulation (EC) No 1290/2005 (2) by reason of the application of a financial correction which was based on a mistaken determination of the facts and on an incorrect legal interpretation — The Commission applied a financial correction which was based on a mistaken determination of the facts and on an incorrect legal interpretation, even though the expenditure was effected by the Polish authorities in accordance with European Union provisions. The Republic of Poland takes issue with the Commission’s legal interpretation and findings of fact with regard to the alleged deficiencies in the management system for the action sector ‘Early retirement’ concerning, firstly, the obligation to carry out a commercial activity during the period prior to cessation of operation for purposes of early retirement, secondly, the inadequacy of the evidence of professional aptitude accepted, in the form of a declaration, by the Polish authorities, and, third, the lack of sanctions in the event of non-compliance, by farmers resuming operation of a holding, with the obligation to carry on an agricultural activity for five years.
EN Official Journal of the European Union C 207/40

Action brought on 6 May 2013 — Stayer Ibérica/OHIM — Korporaciya ‘Masternet’ (STAYER)

(Case T-254/13)

2013/C 207/68

Language in which the application was lodged: English

Parties

Applicant: Stayer Ibérica, SA (Pinto, Spain) (represented by: S. Rizzo, lawyer)

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

Other party to the proceedings before the Board of Appeal: ZAO Korporaciya ‘Masternet’ (Moscow, Russia)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision in so far as it upholds the appeal in part and declares the CTM registration No 4675881 invalid for the following goods: — Class 7: Equipment and tools; parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries; marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of equipment included in Class 7. — Class 8: Hand held abrasive items (wheels and grinding wheels).

— Order OHIM 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 ‘STAYER’ — Community trade mark registration No 4 675 881

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The grounds for the request for a declaration of invalidity were those of Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation No 207/2009

Decision of the Cancellation Division: Rejected the request for invalidity in its entirety

Decision of the Board of Appeal: Partially upheld the appeal.

Pleas in law: Infringement of Articles 76(2), 15 and 8(1)(b) of Council Regulation No 207/2009.
2.

Second plea in law, alleging that the violations below taken together were so extensive as to amount to a flagrant violation of a superior law, as follows: — At the time the applicant was deprived of its bank deposits there were no ‘conditions provided for by law’ in place in the acquis dealing with deprivation of bank deposits contrary to the Charter and Protocol; — The applicant was deprived of its deposits without ‘fair compensation being paid in good time’ contrary to article 17 of the Charter and article 1 of the Protocol; — Deprivation of deposits is prima facie unlawful unless ‘subject to the principle of proportionality… it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.’ (2); — The competing public interest in preventing panic and a run on the banking system, short and medium term, was not considered in evaluating the public interest under Article 17 of the Charter and Article 1 of the Protocol; — The aim was not to damage or penalise Cyprus but to benefit it and the euro area by providing stability support and thereby alleviating not destabilising its financial institutions and economic viability; and — There was no relationship of proportionality of the interference to a legitimate aim since by Article 3 of the ESM Treaty 2012 the genuine objective was ‘to mobilise funding and provide stability support under strict conditionality… to the benefit of ESM Members which are experiencing or are threatened by severe financial problems, if indispensable to safeguard the euro area as a whole and of its member state’ without paralysing its economy.
EN Official Journal of the European Union C 215/16

Action brought on 29 May 2013 — Junited Autoglas Deutschland/OHIM — Belron Hungary (United Autoglas)

(Case T-297/13)

2013/C 215/22

Language in which the application was lodged: English

Parties

Applicant: Junited Autoglas Deutschland (Cologne, Germany) (represented by: C. Weil, lawyer)

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

Other party to the proceedings before the Board of Appeal: Belron Hungary Kft — Zug Branch (Zug, Switzerland)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision;

— Dismiss the opposition filed by the intervener to the application for registration of the Community trademark ‘United Autoglas’;

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

— Order the intervener to pay the costs, including those incurred by the applicant 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 ‘United Autoglas’ for goods and services in classes 1, 12 and 37 — Community trade mark registration No 6 025 498

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 and Polish trade mark registrations of figurative marks containing the word element ‘AUTOGLASS’ and the word marks ‘AUTOGLASS’ for goods and services in classes 12, 21 et 37

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) and (5) of Council Regulation No 207/2009.
1.

First plea in law, alleging that the Commission acted contrary to the Basic Regulation, since it opted for a countrywide duty and refused to calculate an individual dumping duty, despite the fact that it had all the information it needed to do so. In this regard, the applicants note that the Commission committed a manifest error of assessment of the relevant facts, an error in law, failed to state reasons for its conclusions, breached its duty of care and violated the rights of defence as well as the principle of legal certainty and legitimate expectations of the applicants.