ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 355/37

Action brought on 2 October 2012 — Heinrich v OHIM — Commission (European Network Rapid Manufacturing)

(Case T-430/12)

2012/C 355/77

Language in which the application was lodged: German

Parties

Applicant: Heinrich Beteiligungs GmbH (Witten, Germany) (represented by: A. Theis, lawyer)

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

Other party to the proceedings before the Board of Appeal: European Commission

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 5 July 2012 in Case R 793/2011-1;

— 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 including the word elements ‘European Network Rapid Manufacturing’ for goods and services in Classes 6, 7, 12, 17 and 42 — Community trade mark No 7 407 968

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity of the Community trade mark: European Commission

Grounds for the application for a declaration of invalidity: the figurative mark is an imitation from a heraldic point of view of the European emblem

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

Decision of the Board of Appeal: the appeal was upheld and the figurative mark was declared invalid

Pleas in law: Infringement of Article 7(1)(h) of Regulation No 207/2009 in conjunction with Article 6ter(1)(a) of the Paris Convention for the Protection of Industrial Property
EN Official Journal of the European Union C 355/35

Action brought on 26 September 2012 — Kappa Filter Systems v OHIM (THE FUTURE HAS ZERO EMISSIONS)

(Case T-422/12)

2012/C 355/74

Language of the case: German

Parties

Applicant: Kappa Filter Systems GmbH (Steyr-Gleink, Austria) (represented by C. Hadeyer, 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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 July 2012 in Case R 817/2012-4;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘THE FUTURE HAS ZERO EMISSIONS’ for goods and services in Classes 9, 11 and 37 — Community trade mark application No 010139749

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 379/27

Action brought on 17 October 2012 — British Telecommunications v Commission

(Case T-456/12)

2012/C 379/48

Language of the case: English

Parties

Applicant: British Telecommunications plc (London, United Kingdom) (represented by: J. Rivas Andrés and G. van de Walle de Ghelcke, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul the Decision of the European Commission of 12 June 2012 given in State Aid Case SA.33540 (2012/N) — United Kingdom City of Birmingham — Digital District NGA Network; and

— Order the defendant to pay the costs incurred by the present action.

Pleas in law and main arguments

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

1. First plea in law, alleging that — the Commission infringed Article 107(3)(c) TFEU and paragraph 35 of the Broadband Guidelines (1) by failing to analyse whether the objective of the aid is well defined;

2. Second plea in law, alleging that — the Commission failed to assess the proportionality of the proposed measure under Article 107(3)(c) TFEU and paragraphs 51 and 79 of the Broadband Guidelines and should have opened the formal investigation procedure;

3. Third plea in law, alleging that — the Commission should have opened the formal investigation procedure because the proposed aid has effects on markets other than NGA for which there is no market failure and the Commission failed to analyse them;

4. Fourth plea in law, alleging that — by requiring the selected operator to ‘satisfy all different types of network access that operators may seek’ the contested decision removes the ‘incentive effect’ and is incompatible with the Broadband Guidelines and Article 107(3)(c) TFEU;

5. Fifth plea in law, alleging that — the Commission has infringed Article 107(3)(c) TFEU and the Broadband Guidelines by approving the use of State aid for the duplication of pre-existing leased lines networks in the Target Area;

6. Sixth plea in law, alleging that — by requiring the New Network to ‘satisfy all different types of network access that operators may seek’ the contested decision is disproportionate and inconsistent with the Community regulatory framework for electronic communications;

7. Seventh plea in law, alleging that — the contested decision is vitiated by errors of fact and manifest errors of appreciation and the Commission infringed its obligations in relation to the preliminary investigation to state adequate reasons on which it based the contested decision.

(1) Communication from the Commission — Community Guidelines for the application of State aid rules in relation to rapid deployment of broadband networks [OJ 2009 C 235, p. 7]
EN Official Journal of the European Union C 379/26

Action brought on 10 October 2012 — Visa Europe v Commission

(Case T-447/12)

2012/C 379/46

Language of the case: English

Parties

Applicant: Visa Europe Ltd (London, United Kingdom) (represented by: A. Renshaw and J. Aitken, Solicitors)

Defendant: European Commission

Form of order sought

The applicant claim that the Court should:

— Annul the Commission’s decision of 31 July 2012 given in Case COMP/D1/39398 — Visa MIF, insofar as it rejects Visa Europe’s request to modify the debit multilateral interchange fee (MIF) cap made legally binding by the Commission’s decision of 8 December 2010; and

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

Pleas in law and main arguments

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

1. First plea in law, alleging that — the Commission breached Art. 41 of the Charter of Fundamental Rights of the European Union, Visa Europe’s rights of defence and the principle of sound administration by not providing Visa Europe with the opportunity to effectively make known its views on the relevant facts and on the Commission’s objections regarding the alleged shortcomings in the economic study submitted by Visa Europe before definitively rejecting Visa Europe’s request to modify the MIF cap.

2. Second plea in law, alleging that — the Commission breached Art. 9(2)(a) of Regulation 1/2003 (1), the principle of sound administration and Art. 296 TFEU by not comparing the economic study submitted by Visa Europe with the studies previously used to calculate the MIF cap and by relying on irrelevant considerations when rejecting Visa Europe’s request to modify the MIF cap.

3. Third plea in law, alleging that — the Commission committed a manifest error of assessment. It rejected evidence submitted by Visa Europe on the basis of flawed considerations, as well as on the basis of objections inconsistent with the Commission’s own precedents. Furthermore, the Commission failed to appreciate that its objections, even if they were correct, would nevertheless fail to justify the refusal to modify the MIF cap.

(1) Council Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles [101] and [102] of the [TFEU] (OJ L 1, p. 1)
EN Official Journal of the European Union C 26/55

Action brought on 6 November 2012 — Mondadori Editore v OHIM — Grazia Equity (GRAZIA)

(Case T-490/12)

2013/C 26/112

Language in which the application was lodged: English

Parties

Applicant: Arnoldo Mondadori Editore SpA (Milan, Italy) (represented by: G. Dragotti and R. Valenti, lawyers)

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

Other party to the proceedings before the Board of Appeal: Grazia Equity GmbH (Stuttgart, 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 (Trade Marks and Designs) of 6 September 2012 in case R 1958/2010-4; and

— Order OHIM 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 ‘GRAZIA’, for services in classes 35 and 36 — Community trade mark application No 6840466

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

Mark or sign cited in opposition: Italian trade mark registration No 906507 of the figurative mark ‘GRAZIA’, for goods and services in classes 3, 9, 16, 18, 25 and 38; Community trade mark registration No 1714146 of the figurative mark ‘GRAZIA’, for goods and services in classes 3, 9, 16, 18 and 38; Italian trade mark registration No 1049965 of the word mark ‘GRAZIA’, for goods in class 16; Italian trade mark registration No 1050165 and International trade mark registrations No 276829, No 276833 and No 817006 for the above marks, for goods and services in classes 9, 16 or 38

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 9/41

Action brought on 29 October 2012 — LaserSoft Imaging v OHIM (WorkflowPilot)

(Case T-475/12)

2013/C 9/73

Language of the case: German

Parties

Applicant: LaserSoft Imaging AG (Kiel, Germany) (represented by J. Hunnekuhl, 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 decisions of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2012 and 6 August 2012 (Case R 480/2012-4) in so far as they rejected the applicant’s trade mark application of 29 August 2011 and order the defendant to register the word mark ‘WorkflowPilot’ in the trade mark register of the Office for Harmonisation for the Internal Market in accordance with the application.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘WorkflowPilot’ for goods and services in Classes 9, 41 and 42 — Community trade mark application No 10 223 774

Decision of the Examiner: the application was rejected in part

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) and of Article 7(2) of Regulation No 207/2009
EN Official Journal of the European Union C 26/61

Action brought on 19 November 2012 — Farmaceutisk Laboratorium Ferring v OHIM — Tillotts Pharma (OCTASA)

(Case T-501/12)

2013/C 26/121

Language in which the application was lodged: English

Parties

Applicant: Farmaceutisk Laboratorium Ferring A/S (Copenhagen, Denmark) (represented by: I. Fowler, Solicitor, A. Renck and J. Fuhrmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: Tillotts Pharma AG (Ziefen, 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 6 September 2012 in case R 1214/2011-4; and.

— Order that the costs of the proceedings be borne by the Defendant, or — in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the Defendant — that they be borne jointly by the Defendant and the Intervener.

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 ‘OCTASA’, for goods in class 5 — Community trade mark application No 8169881

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

Mark or sign cited in opposition: Austrian trade mark registration No 102370 for the word mark ‘PENTASA’, for among others goods in class 5; Hungarian trade mark registration No 136836 for the word mark ‘PENTASA’, for goods in class 5; Italian trade mark registration No 40977 C/81 for the word mark ‘PENTASA’, for among others goods in class 5; Polish trade mark registration No 71634 for the word mark ‘PENTASA’, for goods in class 5; Slovak trade mark registration No 175482 for the word mark ‘PENTASA’, for goods in class 5; Swedish trade mark registration No 173377 for the word mark ‘PENTASA’, for among others goods in class 5; French trade mark registration No 1699236 for the word mark ‘PENTASA’, for among others goods in class 5; Irish trade mark registration No 107207 for the word mark ‘PENTASA’, for goods in class 5; Czech trade mark registration No 182567 for the word mark ‘PENTASA’, for goods in class 5

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 26/68

Action brought on 6 December 2012 — DeMaCo Holland v Commission

(Case T-527/12)

2013/C 26/133

Language of the case: Dutch

Parties

Applicant: DeMaCo Holland BV (Langedijk, Netherlands) (represented by: L. Linders and S. Bishop, lawyers)

Defendant: European Commission

Form of order sought

— Declare the applicant’s claim admissible and well-founded;

— consequently order Euratom to desist immediately from any use of the ‘redesign’ in respect of which the applicant has rights and, further, order Euratom to pay compensation to the applicant, provisionally estimated at EUR 100 000, on the basis of its non-contractual error;

— order Euratom to pay the costs incurred in the present proceedings.

Pleas in law and main arguments

By its claim the applicant seeks compensation for the damage suffered as a result of the non-contractual error of the European Atomic Energy Community, represented by the European Commission, inasmuch as it made use of technical drawings belonging to the applicant and transmitted those drawings for use in a public procurement procedure by the European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy).

In support of its action the applicant claims that the defendant unlawfully made use of the applicant’s technical drawings.

The technical drawings created exclusively by the applicant — outside any contractual relationship between the parties — were used by the defendant without the applicant’s agreement. Furthermore, the defendant facilitated the use of the technical drawings by third parties, namely Fusion for Energy.

The knowingly unlawful use by the defendant of the applicant’s technical drawings constitutes unlawful conduct and infringes the applicant’s copyright.

The defendant has thus acquired an unauthorised economic advantage for itself on the basis of the applicant’s financial and intellectual efforts, which is contrary to fair commercial practice and fair competition.

The damage suffered consists of the applicant’s loss of profit as a result of Fusion for Energy’s call for tenders, which was made possible as a result of the defendant’s intervention, and remuneration for the disregard of the applicant’s intellectual property rights.
EN Official Journal of the European Union C 46/23

Action brought on 19 December 2012 — Beninca v Commission

(Case T-561/12)

2013/C 46/42

Language of the case: English

Parties

Applicant: Jürgen Beninca (Frankfurt am Main, Germany) (represented by: C. Zschocke, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Annul Commission’s Decision of 9 October 2012, refusing access to a document produced in the framework of merger proceedings (Case COMP/M.6166 — NYSE Euronext/Deutsche Börse); and

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that none of the exceptions listed in Article 4 of Regulation (EC) No 1049/2001 (1) applies. This is in particular correct for the exceptions referred to by the Commission in the Decision, namely Article 4(3), second subparagraph and Article 4(2), first indent, of the said regulation.

2. Second plea in law, alleging that if any of these exceptions would apply, the Decision fails to properly consider whether at least partial (or redacted) access to the requested document is possible pursuant to Article 4(6) of Regulation (EC) No 1049/2001.

3. Third plea in law, alleging that the applicant has a right to access to the requested document because of an overriding public interest in making the document in question available, pursuant to Articles 4(2) and 4(3) of Regulation (EC) No 1049/2001.

(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 71/23

Action brought on 17 December 2012 — Mory and Others v Commission

(Case T-545/12)

2013/C 71/36

Language of the case: French

Parties

Applicants: Mory SA (Pantin, France); Mory Team (Pantin) and Compagnie française superga d’investissement dans le service (CFSIS) (Miraumont, France) (represented by: B. Vatier and F. Loubières, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Commission Decision;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law in support of their action against Commission Decision C(2012) 2401 final of 4 April 2012, by which the Commission states that the obligation imposed on the Sernam companies to repay State aid by Article 2 of Commission Decision C(2012) 1616 final of 9 March 2012 does not extend to the potential purchasers of the assets of the Sernam Group. (1)

1. First plea in law, alleging that the Commission lacked the powers to adopt the contested decision and thus a misuse of powers, since the Commission is not competent to adopt a decision finding that the procedure adopted to execute the decision of 9 March 2012 does not constitute a circumvention of that procedure without a fresh in-depth investigation.

2. Second plea in law, alleging infringement of the obligation to apply the formal investigation procedure when verifying State aid in the event of serious concerns.

3. Third plea in law, alleging inconsistent subject-matter and reasons inasmuch as, firstly, the subject-matter of the decision referred to by the Commission and the actual content thereof do not equate to each other and, secondly, the decision applies contradictory criteria to assess the absence of economic continuity between the aided activities and the purchaser of those activities.

4. Fourth plea in law, alleging manifest errors of assessment as regards (i) the object of the sale, (ii) the transfer price, (iii) the moment when the transfer was effected, (iv) the degree of independence of the new owners and shareholders and (v) the economic logic of the transaction.

5. Fifth plea in law, alleging a lack of legal basis, inasmuch as the decision was adopted without it being ascertained that the transfer of the assets was made at their market value and without a study of the consequences of the fact that the purchaser belongs to the same group as that which distributed the unlawful aid.

(1) State aid No SA.34547 (2012/N) — France, in the notice to the Official Journal of the European Union OJ 2012 C 305, p. 10.
1.

First ground of appeal, alleging an error of law as regards the scope of the principle of legality, since the Civil Service Tribunal (CST) considered, first, that the reasons given by the authority empowered to conclude contracts of employment (‘the AECE’) at the stage at which the complaint was rejected can be substituted for and alter the reasons given when the appellant’s request for extension of her contract as a member of the temporary staff was rejected and, second, that the reasoning is valid even those it is based on factors established after the contested measure was adopted. The appellant submits that: — if, in the present case, the appellant’s contract was not renewed on account of the rule prohibiting cumulative periods of service of more than eight years, the AECE was not subsequently entitled to state, in its response to the complaint, that the contract had not been renewed on account of budgetary constraints, the appellant’s merits and the interests of the service, and then go on to claim, before the Tribunal, that the only reason for non-renewal was budgetary constraints; — the CST is required, contrary to what is stated at paragraph 50 of the judgment under appeal, to examine the plea of illegality in respect of the eight year rule, a plea which was raised when the request for extension of the contract as a temporary member of staff was rejected.
EN Official Journal of the European Union C 63/21

Action brought on 26 December 2012 — Nemeco/OHIM — Coca-Cola (NU)

(Case T-549/12)

2013/C 63/42

Language in which the application was lodged: English

Parties

Applicant: Nemeco (Paris, France) (represented by: E. Gaspar, lawyer)

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

Other party to the proceedings before the Board of Appeal: The Coca-Cola Company (Atlanta, United States)

Form of order sought

The applicant claims that the Court should:

— Annul the decision rendered by the Second Board of Appeal of the Office for Harmonisation in the Internal Marked (Trade Marks and Designs) (OHIM) on October 16, 2012 (Case No. R 266/2012-2);

— Order OHIM to bear its own costs and to pay Nemeco’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘NU’, for goods in class 32 — International Registration No 1 033 122 designating the European Union

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 5386081 of the word mark ‘NU YU’, for goods in classes 29, 30 and 32

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.