ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 256/32

Action brought on 24 August 2009 — Colegio Oficial de Farmacéuticos de Valencia v Commission

(Case T-337/09)

2009/C 256/58

Language of the case: Spanish

Parties

Applicant: Colegio Oficial de Farmacéuticos de Valencia (Valencia, Spain) (represented by: E. Navarro Varona, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul, under Articles 230 and 231 EC, the Commission decision of 15 June 2009 partly denying access to information requested by the applicant by means of its initial application of 23 October 2008 and its confirmatory application of 19 January 2009.

— order the Commission to pay the costs incurred by the applicant.

Pleas in law and main arguments

This action is brought against the decision of the Commission of the European Communities partly refusing access to certain documents drawn up by the consultants ECORYS Nederland BV for the preparation of the report titled ‘Study of regulatory restrictions in the field of pharmacies’ of 22 June 2007 for the defendant’s Directorate General Internal Market and Services.

In support of its claims, the applicant alleges infringement of Article 4(2) and Article 8 of 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. (1)

The applicant claims that the contested decision:

— does not contain an adequate statement of reasons.

— errs in its assessment of the exception relating to the commercial interests of a legal person, including intellectual property.

— contains a manifest error of reasoning, by not taking into account that there is an overriding public interest.

— Fails to comply with the prescribed periods for replying to the confirmatory application for access to the documents.

(1) OJ L 145 of 31.5.2001, p. 43
—

infringement of Article 3 of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, (1) in so far as it is highly apparent from the historical background to how the production of Balsamic vinegar from Modena developed that there is no connection whatsoever between such products and a particular geographical area. In fact, there can be no doubt that, for several decades, a majority of the Balsamic vinegar from Modena sold in Italy and abroad has been produced outside the historical territory of origin. Against that background, the name in question describes a product made in accordance with particular production methods and having specific characteristics which do not, however, depend on the place of production;
EN Official Journal of the European Union C 267/68

Action brought on 18 August 2009 — Connefroy and Others v Commission

(Case T-327/09)

2009/C 267/124

Language of the case: French

Parties

Applicants: Philippe Connefroy (Le Rozel, France), Jean-Guy Gueguen (Carantec, France) and EARL de Cavagnan (Bouglon, France) (represented by: C. Galvez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision on the basis of the fourth paragraph of Article 230 EC;

— Order the Commission to pay all the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2009) 203 final of 28 January 2009 (1), by which the Commission had declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers in the context of ‘contingency plans’ aimed at facilitating the marketing of agricultural products harvested in France and had instructed the French Republic to recover the aid in question.

The pleas in law and main arguments relied on by the applicants are identical or similar to those relied on in the context of Case T-243/09 Fedecom v Commission (2).

(1) OJ 2009 L 127, p. 11 — published under No 2009/402/EC.

(2) OJ 2009 C 205, p. 43.
EN Official Journal of the European Union C 267/68

Action brought on 14 August 2009 — skytron energy v OHIM (arraybox)

(Case T-321/09)

2009/C 267/123

Language in which the application was lodged: German

Parties

Applicant: skytron energy GmbH & Co. KG (Berlin, Germany) (represented by H.-J. Omsels, lawyer)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 4 June 2009 in Case R 1680/2008-1;

— In the alternative, refer the case back to the Office for Harmonisation in the Internal Market;

— Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘arraybox’ for goods and services in Classes 9, 37, 38 and 42 (application No 6 710 479)

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 (1) as the sign applied for is not descriptive and has the requisite distinctive character.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 282/61

Action brought on 5 October 2009 — Grúas Abril Asistencia v Commission

(Case T-386/09)

2009/C 282/114

Language of the case: Spanish

Parties

Applicant: Grúas Abril Asistencia SL (Alicante, Spain) (represented by: R. L. García García, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare that the dismissal by the Spanish competition authorities and courts of the claim of the applicant, GRUAS ABRIL ASISTENCIA SL, is contrary to Articles 81 and 82 EC.

— In consequence, order the Commission of the European Communities, which adopted the contested approval, to provide the necessary measures and guarantees in order to bring such unlawful activity to an end, imposing the appropriate fines and penalties for such infringement, and entitle BAS HERMANOS SL to be compensated for the loss it suffered as a result of that infringement.

— Declare, in short, that by its conduct towards its service provider, the applicant, the company MAPFRE MUTUALIDAD DE SEGUROS Y REASEGUROS A PRIMA FIJA (now known as MAPFRE SA), infringed the Spanish Law on the Protection of Competition and Articles 81 and 82 EC, by unilaterally setting the rates for the breakdown services provided, setting rates below the cost price of such services, unjustifiably and arbitrarily requiring the services to be performed subject to conditions not provided for under the contract (performance of the service using breakdown trucks displaying MAPFRE’s logo), threatening to terminate the contract if such requirements were not met, and ultimately carrying out such a threat.

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

Pleas in law and main arguments

The applicant in the present proceedings is a family company that provides vehicle-towing services for breakdown assistance.

In its action, the applicant opposes MAPFRE SA’s conduct, allegedly in breach of the competition rules, which, in a contractual relationship for the provision of breakdown services, when required by MAPFRE or its insureds, for vehicles insured by MAPFRE, required the breakdown service to be provided, as the applicant itself states, using vehicles displaying the MAPFRE logo and the MAPFRE trade mark to be advertised completely free of charge, with rates set below the actual cost of the service provided.

In support of its action, the applicant alleges infringement of the Community and national rules on competition.
EN Official Journal of the European Union C 282/60

Action brought on 28 September 2009 — Fuller & Thaler Asset Management v OHIM (BEHAVIOURAL INDEX)

(Case T-383/09)

2009/C 282/112

Language of the case: English

Parties

Applicant(s): Fuller & Thaler Asset Management, Inc. (San Mateo, United States) (represented by S. Malynicz, Barrister)

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

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2009 in case R 138/2009-1; and

— Order the defendant to pay its own costs and those of the applicant

Pleas in law and main arguments

Community trade mark concerned: The word mark “BEHAVIOURAL INDEX” for goods and services in classes 9 and 36

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation 207/2009 as the Board of Appeal (i) erred in relation to the meaning and syntax of the mark, as well as its aptness or otherwise as an immediate and direct descriptive term for the goods and services in question; (ii) failed to establish facts of its own motion that would show that the Community trade mark concerned was descriptive to the relevant public, even though it correctly concluded that the relevant public was specialised; and (iii) failed to take account of the public interest that underlies this ground for refusal and failed to establish on the evidence that there was, in the relevant specialised sphere, a reasonable likelihood that other traders in that sphere would wish to use the Community trade mark concerned in the future.
EN Official Journal of the European Union C 297/21

Action brought on 27 March 2009 — Phoenix-Reisen and DRV v Commission

(Case T-120/09)

2009/C 297/31

Language of the case: German

Parties

Applicants: Phoenix-Reisen GmbH (Bonn, Germany) and Deutscher Reiseverband eV (DRV) (Berlin, Germany) (represented by: R. Gerharz and A. Funke, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the defendant’s decision of 13 February 2009 by which it refused to take action against State aid granted by the Federal Republic of Germany in the form of insolvency payments;

— In the alternative, reinterpret the action for annulment as an action for failure to act, in the event that the Court should take the view that the present proceedings must take the form of an action for failure to act.

Pleas in law and main arguments

The applicants’ action is directed against the Commission’s letter (reference D/50594) of 13 February 2009 concerning its complaint in connection with insolvency benefit payments to undertakings and with the financing of the payment of insolvency benefit in the Federal Republic of Germany (CP 79/2007 — Alleged State Aid in the form of insolvency benefit payments). In that letter the Commission states repeatedly that there is in its view no infringement of the provisions on State aid.

In support of their claim, the applicants maintain that the contested measures cannot be justified under Directive 80/987/EEC. (1) Furthermore, the Commission’s refusal to take action against the alleged wrongdoing infringes Community law. That rejection also cannot be justified by the decisions of the Bundessozialgericht (Federal Social Court).

(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23)
EN Official Journal of the European Union C 282/57

Action brought on 25 September 2009 — Glenton España v OHIM — Polo/Lauren (POLO SANTA MARIA)

(Case T-376/09)

2009/C 282/107

Language in which the application was lodged: English

Parties

Applicant: Glenton España, SA (Madrid, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal: The Polo/Lauren Company L.P. (New York, United States)

Form of order sought

— Admit the application;

— Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 594/2008-2;

— Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark “POLO SANTA MARIA”, for goods and services in classes 18, 25, 36, 41 and 43

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: Benelux trade mark registration of the figurative mark “device of a silhouette of a polo player” for goods in classes 18 and 25

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

Decision of the Board of Appeal: Annulled partially the contested decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned
EN Official Journal of the European Union C 312/38

Action brought on 14 October 2009 — Goodyear Dunlop Tyres UK Ltd v OHIM — Sportfive (QUALIFIER)

(Case T-424/09)

2009/C 312/63

Language in which the application was lodged: German

Parties

Applicant: Goodyear Dunlop Tyres UK Ltd (Birmingham, United Kingdom) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sportfive GmbH & Co. KG (Cologne, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 August 2009 in case R 1291/2008 4;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Goodyear Dunlop Tyres UK Ltd

Community trade mark concerned: the word mark “QUALIFIER’ for goods in Class 12 (Application No 4 877 262)

Proprietor of the mark or sign cited in the opposition proceedings: Sportfive GmbH & Co. KG

Mark or sign cited in opposition: Community word mark No 4 017 836 and German word mark No 30 415 017.1 ‘Qualifiers 2006’, German word/figurative mark No 30 414 610.2 ‘2006 QUALIFIERS’, the German word mark No 30 515 033.2 ‘Qualifiers 2008’ and German word/figurative mark Nr. 30 565 616.3 ‘2008 QUALIFIERS’, all registered inter alia for goods in Class 12

Decision of the Opposition Division: Allow the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 (1) in that there is a likelihood of confusion between the two marks

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 297/30

Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities

(Case T-401/09)

2009/C 297/44

Language of the case: Italian

Parties

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

Defendant: Court of Justice of the European Communities

Form of order sought

— Annul the decision, however framed, which constituted rejection by the defendant of the request of 24 May 2009 submitted by the applicant to the defendant;

— annul the note dated 15 June 2009 from the Registry of the Court of Justice;

— order the defendant to pay to the applicant the sum of EUR 10 000,00 (ten thousand Euro), or such greater or lesser sum as the Court may consider just and fair, by way of compensation for the damage suffered;

— order the defendant to pay all the costs, disbursements and fees incurred in the proceedings.

Pleas in law and main arguments

The present action concerns the defendant’s refusal to accede to the request for compensation for the alleged damage arising from the fact that a lawyer who was no longer authorised to receive it was notified of the Commission’s appeal against a decision of the Civil Service Tribunal granting in part the form of order sought by the applicant.

In support of his claims, the applicant alleges a total failure to state reasons, breach of the duty of sound administration, infringement of provisions of law and a manifest error of assessment.
EN Official Journal of the European Union C 11/37

Action brought on 17 November 2009 –Storck v OHIM — RAI (Radiotelevisione)

(Case T-462/09)

2010/C 11/68

Language in which the application was lodged: German

Parties

Applicant: August Storck KG (Berlin, Germany) (represented by: I. Rohr, P. Goldenbaum and T. Melchert, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Radiotelevisione italiana SpA (RAI)(Rome, Italy)

Form of order sought

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 8 September 2009 in Case R 1779/2008 4;

— order OHIM to pay the costs;

— should there be an intervener in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Applicant for a Community trade mark: August Storck KG

Community trade mark concerned: the word mark “Ragolizia” for good in Class 30 (Application No 5 201 835)

Proprietor of the mark or sign cited in the opposition proceedings: Radiotelevisione italiana SpA (RAI)

Mark or sign cited in opposition: Community trade mark No 4 771 762“FAVOLIZIA”

Decision of the Opposition Division: Upheld the opposition and rejected the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as there is no likelihood of confusion of the opposing trade marks

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 312/42

Action brought on 3 November 2009 — Azienda Agricola Bracesco v Commission

(Case T-440/09)

2009/C 312/69

Language of the case: Italian

Parties

Applicant: Azienda Agricola Bracesco Srl (Orgiano, Italy) (represented by: F. Tosello, S. Rizzioli and C. Pauly, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Order the Commission, in accordance with Article 235, and the second paragraph of Article 288, of the EC Treaty, to pay Azienda Agricola Bracesco srl, now in liquidation, damages in the amount of EUR 335 000, or such other sum as may be determined in the course of the proceedings or, in any event, as may be held to be fair, together with interest at the statutory rate until due settlement.

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

Pleas in law and main arguments

The present application for compensation for damage, based on the non-contractual liability of the European Communities, is made in the context of the Community measures to combat avian influenza.

In that connection, it is pointed out that, following the disruption to the European poultrymeat market brought about by the fall in prices resulting from the reduction in consumer demand — which was in turn linked to the spread of avian influenza — the Commission decided to take action by means of Regulation No 1010/2006, (1) which makes provision for support measures for poultry producers.

However, notwithstanding the fact that the definition of poultry in the Community animal health legislation covers quail, poultry producers involved in the raising and slaughtering of that species have been excluded, without any reasons being given, from receiving the aid.

The applicant — Azienda Agricola Bracesco srl in liquidation — submits that it has suffered wrongful damage as a result of the conduct of the Commission, which constitutes a manifest and serious infringement of one of the fundamental principles of the Community legal order, that is to say, the principle of equal treatment.

(1) Commission Regulation (EC) No 1010/2006 of 3 July 2006 on certain exceptional market support measures in the eggs and poultry sector in certain Member States (OJ 2006 L 180, p. 3).
EN Official Journal of the European Union C 24/66

Action brought on 30 November 2009 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)

(Case T-477/09)

2010/C 24/116

Language in which the application was lodged: Spanish

Parties

Applicant: ATB Norte, SL (Burgos, Spain) (represented by: P. López Ronda, G. Macías Bonilla, H.L. Curtis-Oliver and G. Marín Raigal, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bricocenter Italia Srl (Rozzano Milanofiori (Milan), Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 — R 1008/2008-4.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bricocenter S.r.l.

Community trade mark concerned: Figurative mark containing the word element ‘BRICOCENTER’ (Application No 4 934 121) in respect of services in Class 35.

Proprietor of the mark or sign cited in the opposition proceedings: ATB Norte, SL.

Mark or sign cited in opposition: Figurative Community trade marks containing the word elements ‘CENTROS DE BRICOLAGE BRICOCENTRO’ (No 3 262 623) and ‘ATB CENTROS DE BRICOLAGE BRICOCENTRO’ (No 989 046) in respect of services in Classes 35, 37 and 39.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Opposition Division’s decision annulled and the opposition rejected in its entirety.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 37/45

Action brought on 14 December 2009 — Evonik Industries AG v OHIM (Representation of a purple rectangle with a rounded right side)

(Case T-499/09)

2010/C 37/65

Language in which the application was lodged: German

Parties

Applicant: Evonik Industries AG (Essen, Germany) (represented by J. Albrecht, lawyer)

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

Form of order sought

— Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Fourth Board of Appeal) of 2 October 2009 (Case R 491/2009-4);

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: a figurative mark representing a rectangular shape in the colour Purple Pantone 513 C, for goods and services in classes 1 to 45 (Application No 7 235 179)

Decision of the Examiner: registration rejected

Decision of the Board of Appeal: appeal dismissed

Pleas in law: misapplication of Article 7(1)(b) of Regulation No 207/2009 (1), on the ground that the trade mark concerned has the requisite distinctive character

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