ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 86/18

Action brought on 4 January 2013 — Sherwin-Williams Sweden/OHIM — Akzo Nobel Coatings International (ARTI)

(Case T-12/13)

2013/C 86/30

Language in which the application was lodged: English

Parties

Applicant: Sherwin-Williams Sweden AB (Märsta, Sweden) (represented by: L. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Akzo Nobel Coatings International BV (Arnhem, Netherlands)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the OHIM First Board of Appeal No R 2085/2011-1 dated, 18 October 2012, (confirming the decision of the Opposition Division Opposition No B 1 717 142, dated 9 August 2011);

— Award the costs in favour of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ARTI’ for goods in class 2 — Community trade mark registration No 9 017 427

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: Benelux trade mark registration No 753 216 and International Trade mark registration No 872 478 of the word mark ‘ARTITUDE’ for goods in class 2

Decision of the Opposition Division: 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.
Third plea in law, alleging contradictory reasoning, in so far as the CST could not state on one hand that the Council rightly decided to carry out a fresh comparative examination of the merits of all Grade AST 6 officials eligible for promotion in promotion year 2007 and then hold that the Council was not required to take into account the merits of a specific official who had already been promoted in that year and whose promotion had become final (concerning paragraphs 69 and 70 of the judgment under appeal).

The applicant also asserts that the CST has committed an error in law by failing to classify the facts, on the basis of the evidence in the file, as constituting a manifest error of assessment.
EN Official Journal of the European Union C 86/20

Action brought on 18 January 2013 — dm-drogerie markt/OHIM — Semtee (CALDEA)

(Case T-26/13)

2013/C 86/33

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and B. Beinert, lawyers)

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

Other party to the proceedings before the Board of Appeal: Semtee (Escaldes Engornay, Andorra)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, by the way of correction, delete the applicant’s trademark;

— Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1) and, to remit the case to the Office for Harmonisation;

— Alternatively annul the decision of the Fits Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Design) of 10 October 2012 (Appeal relating to Opposition Proceedings No R 2432/2011-1).

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 ‘CALDEA’, for goods and services in classes 3, 35, 37, 42, 44 and 45 — Community trade mark application No 9 264 433

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

Mark or sign cited in opposition: International registration with effect inter alia in the European Union No 894 004 for goods in classes 3, 5 and 8

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 (5) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 101/21

Action brought on 4 February 2013 — Efag Trade Mark Company v OHIM (FICKEN)

(Case T-52/13)

2013/C 101/46

Language of the case: German

Parties

Applicant: Efag Trade Mark Company GmbH & Co. KG (Schemmerhofen, Germany) (represented by M. Wekwerth, 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 18 October 2012 in Case R 493/2012-1;

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

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘FICKEN’ for goods and services in Classes 25, 32, 33 and 43 — Community trade mark application No 9 274 366

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)(f) and Article 7(2) of Regulation No 207/2009
EN Official Journal of the European Union C 86/25

Action brought on 30 January 2013 — Out of the Blue KG v OHIM — Mombauer (REFLEXX)

(Case T-48/13)

2013/C 86/42

Language of the case: German

Parties

Applicant: Out of the blue KG (Lilienthal, Germany) (represented by: G. Hasselblatt and I. George, lawyers)

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

Other party to the proceedings before the Board of Appeal: Meinhard Mombauer (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 19 November 2012 in Case R 1656/2011-4;

— Order OHIM to bear its own costs and those of the applicant;

— Were Meinhard Mombauer to participate as intervener in the proceedings, order him to bear his own costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Out of the blue KG

Community trade mark concerned: Word mark ‘REFLEXX’ for goods in Class 9 — Application for Community trade mark No 7 239 511

Proprietor of the mark or sign cited in the opposition proceedings: Meinhard Mombauer

Mark or sign cited in opposition: Figurative mark, containing the word element ‘RELFECTS’, for goods in Class 9

Decision of the Opposition Division: The opposition was upheld

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in Law: Infringement of Article 42(5) in conjunction with Article 8(1)(b) of Regulation No 207/2009
2.

Second plea in law, alleging infringement of the principle of legitimate expectations, since the CST admitted the action, in part, while erring in law as to the interpretation of that principle. The Commission submits that the persons concerned could not claim any legitimate expectations as regards its proposals given that, firstly, those proposals also took account of the periods of service following the entry into service of the persons concerned and, secondly, those proposals did not refer to the amount actually transferred but to the amount transferable, contrary to the clear wording of Article 11(2) of Annex VIII to the Staff Regulations of Officials.
EN Official Journal of the European Union C 123/21

Action brought on 1 March 2013 — Vicente Gandia Pla/OHIM — Tesco Stores (MARQUES DE CHIVÉ)

(Case T-128/13)

2013/C 123/35

Language in which the application was lodged: English

Parties

Applicant: Vicente Gandia Pla, SA (Chiva, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tesco Stores Ltd (Cheshunt, United Kingdom)

Form of order sought

The applicant claims/claim that the Court should:

— Declare admissible the here concerned appeal and enclosures;

— Annul the Boards of Appeal Decision;

— Condemn the OHIM and the intervener to bear the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘MARQUES DE CHIVÉ’ for goods in classes 29, 32 and 33 — Community trade mark registration No 9 571 415

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 registration No 1 520 720 of the word mark ‘MARQUES DE CHIVE’ for goods in class 33

Decision of the Opposition Division: Rejected the opposition directed at the application for the goods in class 33 for lack of genuine use

Decision of the Board of Appeal: Annulled the contested decision and rejected the application for the goods in class 33

Pleas in law: Infringement of Articles 42(2) and (3) of Council Regulation No 207/2009.
1.

First plea in law, alleging an error of law and a breach of the duty to state reasons, as the CST held that the decision refusing to promote the person concerned could be reasoned at the stage of the answer to the complaint whereas the reasoning should already have been set out in the decision refusing promotion in so far as that decision was adopted under article 266 TFEU implementing the judgment in case F-53/08 Bouillez and Others v Council [2010] ECR I-0000 and not in accordance with article 45 of the Staff Regulations.
1.

First plea in law, alleging that the contested decision should be annulled on the grounds that the Commission made a manifest error of assessment by infringing and failing to respect the applicant’s rights to the protection of legitimate expectations and the principle of proportionality thereby unlawfully terminating without due cause the applicant claim for market economy treatment in the context of an anti-dumping investigation.
—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 January 2013 in Case R 2536/2011-4 and the Examiner’s decision of 23 November 2011 in so far as the mark was rejected;
EN Official Journal of the European Union C 147/28

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

(Case T-171/13)

2013/C 147/50

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 figurative mark ‘MOTOBI B PESARO’ for goods in classes 9, 12 and 25 — Community trade mark registration No 2 262 269

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.
—

Annul Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as the contested acts include the applicant; and,
2.

The second plea in law alleges infringement of the principle of equal treatment and of Article 39 TFEU in conjunction with the second subparagraph of Article 40(2) thereof, given that the application of modulation in relation to complementary national direct payments leads to the amounts paid to farmers in the new Member States being reduced to a level lower than the amounts paid to their counterparts in Member States other than new Member States and that account was not taken, when the contested decision was adopted, of the diversity of the situations in individual regions of the European Union.
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-92/12, Marcuccio v Commission

(Case T-203/13 P)

2013/C 156/95

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the Court should:

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

— Refer the case back to the Civil Service Tribunal.

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal of 28 January 2013 in Case F-92/12 Marcuccio v Commission rejecting as manifestly inadmissible an action for annulment of the decision of the European Commission to withhold certain amounts from the appellant’s invalidity allowance for the months of October, November and December 2011 and for reimbursement of the sums withheld.

In the order under appeal, the Tribunal stated that the firm of the appellant’s representative which appears at the end of the document sent by fax on 5 September 2012 was not the same as the firm which appears on the application received by post on 13 September 2012.

In support of his appeal, the appellant alleges absolute failure to state reasons, by reason inter alia of failure to make preliminary inquiries, self-evident, tautologous and arbitrary reasoning, distortion and misrepresentation of the facts and an error of law, by reason inter alia of manifest failure properly to appraise the facts.
7.

The part of the decision which concerns the flat rate correction relating to the processing of citrus fruits for the years 2005, 2006 and 2007 is unlawful and is contested in so far as it attributes responsibility for the cases of fraud discovered within the sector to inadequate monitoring on the part of the Member State. In particular, the Commission has not taken into account the fact that no partial or total failure to act was imputable to the State, given that the fraudulent activity in question was in fact imputable to the public officials who were supposed to confirm, following the monitoring entrusted to them, the legality of the activity carried out and the scope of the contributions; therefore, it was not possible for the investigations to be carried out in any other way, and thus avoid fraud, until the criminal conduct mentioned was discovered.
EN Official Journal of the European Union C 189/25

Action brought on 15 April 2013 — Saf-Holland v OHIM (INTEGRAL)

(Case T-217/13)

2013/C 189/53

Language of the case: German

Parties

Applicant: Saf-Holland GmbH (Bessenbach, Germany) (represented by M.-C. Seiler, 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 31 January 2013 in Case R 2087/2011-1;

— Amend the contested decision in such a way that the preceding refusal decision of OHIM of 14 September 2011 is annulled;

— In the alternative, amend the contested decision in such a way that the registration procedure is continued;

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

Pleas in law and main arguments

Community trade mark concerned: the word mark INTEGRAL for goods and services in Classes 9, 12, 35 and 37 — Community trade mark application No 9 508 466

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) and (c) of Regulation No 207/2009
EN Official Journal of the European Union C 207/40

Action brought on 6 May 2013 — Orthogen v OHIM — Arthrex Medizinische Instrumente (IRAP)

(Case T-253/13)

2013/C 207/67

Language in which the application was lodged: German

Parties

Applicant: Orthogen AG (Düsseldorf, Germany) (represented by: M. Finger and S. Krüger, lawyers)

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

Other party to the proceedings before the Board of Appeal: Arthrex Medizinische Instrumente GmbH (Karlsfeld, Germany)

Form of order sought

The applicant claims that the General 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 21 February 2013 in Case R 382/2012-1;

— order OHIM to pay the costs of the proceedings, including those incurred before the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘IRAP’ for goods and services in Classes 1, 5, 10, 42 and 44 — Community trade mark No 3 609 121

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: Arthrex Medizinische Instrumente GmbH

Grounds for the application for a declaration of invalidity: Absolute ground for invalidity; ‘IRAP’ is a commonly used abbreviation for a certain protein which plays a significant role in certain medical and veterinary treatments.

Decision of the Cancellation Division: Application for a declaration of invalidity granted

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 52(1)(a) of Regulation No 207/2009 and of Article 7(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 207/52

Appeal brought on 22 May 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 11 March 2013 in Case F-131/12 Marcuccio v Commission

(Case T-283/13 P)

2013/C 207/85

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

— Set aside 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 same as those relied on in Case T-203/13 P Marcuccio v Commission.
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 applicants were deprived of their 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 applicants were deprived of their 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 215/15

Action brought on 24 May 2013 — Golam v OHIM — meta Fackler Arzneimittel (METABIOMAX)

(Case T-281/13)

2013/C 215/21

Language in which the application was lodged: Greek

Parties

Applicant: Sofia Golam (Athens, Greece) (represented by: N. Trovas, lawyer)

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

Other party to the proceedings before the Board of Appeal: meta Fackler Arzneimittel GmbH (Springe, Germany)

Form of order sought

The applicant claims that the General Court should:

— uphold the present action, so as to annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 March 2013 in Case R 2022/2011-2;

— reject the opposition of the other party before the Board of Appeal and grant the application lodged by the applicant in its entirety;

— order the other party before the Board of Appeal to pay the applicant the costs of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Sofia Golam

Community trade mark concerned: the word mark ‘METABIOMAX’ for goods in Classes 5, 16 and 30 — Community trade mark application No 8885261

Proprietor of the mark or sign cited in the opposition proceedings: meta Fackler Arzneimittel GmbH

Mark or sign cited in opposition: the German word mark ‘metabiarex’ which has been registered under No 857721, for goods in Class 5

Decision of the Opposition Division: opposition upheld in part

Decision of the Board of Appeal: decision of the Opposition Division annulled in part

Pleas in law: infringement of Article 8(1)(b) and Article 8(5) of Council Regulation No 207/2009 of 26 February 2009