ddrg/super_eurlex huggingface dataset:
Official Journal of the European Union

Action brought on 26 August 2010 — Milux v OHMI (VESICACONTROL)

(Case T-351/10)

()

(2010/C 288/100)

Language of the case: English

Parties

Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

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 28 July 2010 in case R 1439/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘VESICACONTROL’ for goods and services in classes 9, 10 and 44

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 Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination and equal treatment to the facts in this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.
EN Official Journal of the European Union C 301/48

Action brought on 13 September 2010 — Nedri Spanstaal v Commission

(Case T-391/10)

()

2010/C 301/76

Language of the case: Dutch

Parties

Applicant: Nedri Spanstaal BV (Venlo, Netherlands) (represented by: M. Slotboom and B. Haan, lawyers)

Defendant: European Commission

Form of order sought

— Declare the action admissible;

— annul Article 1(9) of the Commission’s decision with regard to the period of time in respect of which Hit Groep was found liable, and Article 2(9) of the decision with regard to the fine imposed on Nedri;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment in part of the Commission’s decision of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement in Case COMP/38.344 — Prestressing steel.

In support of its action, the applicant has submitted three pleas in law.

First, the applicant alleges infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003 (1) and of the obligation to state reasons. According to the applicant, the Commission committed errors of law and of fact by finding Hit Groep jointly and severally liable only for the period from 1 January 1998 to 17 January 2002. In the applicant’s view, the Commission should have found Hit Groep liable for the period from 1 May 1987 to 17 January 2002 since Hit Groep had control of the applicant throughout the whole of that period.

Second, the applicant alleges infringement of Article 23(2) of Regulation No 1/2003, of the Guidelines on setting fines, (2) of the principle of proportionality and of the obligation to state reasons. According to the applicant, the Commission committed errors of law and of fact by applying the legal maximum of the amount of the fine, that is 10 % of turnover in the preceding business year, to the applicant’s turnover in 2009. The legal maximum should have been applied to the applicant’s turnover in 2002.

Third, the applicant alleges infringement of point 23 of the Leniency Notice (3) and of the obligation to state reasons. According to the applicant, the Commission committed errors of law and of fact by granting the applicant only a 25 % reduction of the fine, instead of 30 %.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

(3) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
EN Official Journal of the European Union C 301/47

Appeal brought on 10 September 2010 by Paulette Füller-Tomlinson against the judgment of the Civil Service Tribunal delivered on 1 July 2010 in Case F-97/08, Füller-Tomlinson v Parliament

(Case T-390/10 P)

()

2010/C 301/75

Language of the case: French

Parties

Appellant: Paulette Füller-Tomlinson (Brussels, Belgium) (represented by L. Levi, lawyer)

Other party to the proceedings: European Parliament

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal of the European Union of 1 July 2010 in Case F-97/07;

— Consequently, grant the applicant the form of order sought at first instance and therefore — annul the decision of 9 April 2008 of the Head of the Pensions and Social Insurance Unit, setting, in Article 3, the proportion of partial permanent invalidity attributable to occupational disease at 20 %; — so far as necessary, annul the decision rejecting the complaint; — alternatively, order the defendant to pay the sum of EUR 12 000 as compensation for the non-material damage suffered by the applicant; — order the defendant to pay all the costs.

Pleas in law and main arguments

In the present appeal, the applicant is seeking to have set aside the judgment of the Civil Service Tribunal of 1 July 2010 in Case F-97/08, Füller-Tomlinson v Parliament which dismissed the action in which the applicant had sought annulment of the decision of the European Parliament setting, in regard to the applicant, the proportion of partial permanent invalidity attributable to occupational disease at 20 % pursuant to the European Guide for Assessment, for medical purposes, of Physical and Mental Impairments.

In support of her appeal, the applicant puts forward several pleas in law alleging:

— an infringement of the scope of the Tribunal's powers of judicial review of the lawfulness of the conditions laid down by the cover regulation adopted under Article 73 of the Staff Regulations of Officials of the European Union, inasmuch as the Tribunal limited its review to manifest errors of assessment and to the exceeding by the institutions of their powers of assessment, whereas the review should be complete, covering the lawfulness of the substance of the measure;

— an infringement of the review of manifest error of assessment, distortion of the file, infringement of the Tribunal's obligation to give reasons at first instance and an infringement of Article 73 of the Staff Regulations and the cover regulation: — inasmuch as the Tribunal did not take account of the statements made at the hearing in furtherance of the complaints made in the initiating application; — inasmuch as the Tribunal considered, in particular, that the doctor's freedom of assessment concerned only the pathological finding and not the fixing of the proportion of invalidity, thereby validating the binding character of the European Guide for Assessment of Physical and Mental Impairments, which limits the proportion of invalidity to 20 % in the present case, although the medical committee considered the applicant's proportion of invalidity to be 100 %;
EN Official Journal of the European Union C 317/34

Action brought on 15 September 2010 — Socitrel v Commission

(Case T-413/10)

()

2010/C 317/62

Language of the case: Portuguese

Parties

Applicant: Sociedade Industrial de Trefilaria, SA (São Romão de Coronado, Portugal) (represented by: F. Proença de Carvalho and T. de Faria, lawyers)

Defendant: European Commission.

Form of order sought

— partially annul Article 1 and Article 2 of the Commission decision of 30 June 2010 relating to a proceeding under the terms of Article 101 of the TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing Steel) with regard to the Applicant;

— reduce the fine;

— order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested by the applicant is the same decision contested in Case T-385/10 ArcelorMittal Wire France and Others v Commission.

The applicant submits to the Court:

(i) Serious failure to state reasons in the contested decision, in breach of Article 296 of the TFEU, and breach of the principle of legitimate expectation in the application of the fine, infringing the rights of defence of the applicant when calculating the fine imposed on it.

(ii) Breach of the rights of defence of SOCITREL by virtue of the excessive duration of the administrative procedure of the European Commission, undermining the right to a hearing within a reasonable time, pursuant to Article 6(1) of the European Convention on Human Rights.

Alternatively,

(iii) Breach of Article 101 of the TFEU and manifest error of assessment in finding that SOCITREL was not operating autonomously in the market.

(iv) The applicant also submits that the European Commission committed a manifest error by considering in the turnover, for the purposes of determining the 10 % limit of turnover applied to the calculation of fines, the combined turnover of the companies Emesa, Galycas and ITC, which did not form part of the PREVIDENTE Group at the time when the infringement was committed.
EN Official Journal of the European Union C 301/56

Action brought on 13 September 2010 — Bottega Veneta International v OHIM (Shape of a handbag)

(Case T-409/10)

()

2010/C 301/89

Language in which the application was lodged: Italian

Parties

Applicant: Bottega Veneta International Sarl (Luxembourg, Luxembourg) (represented by P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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 16 June 2010 in Case R 1247/2009-1;

— Order the Office for Harmonisation in the Internal Market to pay the costs of the present proceedings and the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Trade mark consisting of a distinctive three-dimensional sign known as the ‘veneta’ bag (application for registration No 6632608) for goods in Class 18 (‘bags and handbags’).

Decision of the Examiner: Refused the application for registration.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Infringement of Rule 9(3)(a) of Regulation No 2868/95 and Article 7(1)(b) and (3) of Regulation No 207/2009.
EN Official Journal of the European Union C 317/36

Action brought on 18 September 2010 — Dosenbach-Ochsner v OHIM — Sisma (Representation of a rectangle with elephants)

(Case T-424/10)

()

2010/C 317/66

Language in which the application was lodged: German

Parties

Applicant: Dosenbach-Ochsner AG Schuhe und Sport (Dietikon, Switzerland) (represented by: O. Rauscher, 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: Sisma SpA (Mantova, Italy)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 July 2010 in Case R 1638/2008-4;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) 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 representing a rectangle with elephants for goods in Classes 10, 16, 21, 24 and 25

Proprietor of the Community trade mark: SISMA S.p.A.

Applicant for the declaration of invalidity: the applicant

Trade mark right of applicant for the declaration: international and national figurative marks representing an elephant and the national word mark ‘elefanten’ for goods in Classes 24 and 25

Decision of the Cancellation Division: rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) and (2)(a) of Regulation (EC) No 207/2009 (1) as the marks at issue are conceptually, visually and aurally similar and the applicant has expressly submitted that its trade marks have acquired a highly distinctive character as a result of intensive use or their reputation.

(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 328/31

Action brought on 7 September 2010 — Brighton Collectibles v OHIM — Felmar (BRIGHTON)

(Case T-403/10)

()

2010/C 328/54

Language in which the application was lodged: English

Parties

Applicant: Brighton Collectibles, Inc. (City of Industry, USA) (represented by: R. Delorey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Felmar (Paris, France)

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 30 June 2010 in case R 408/2009-4;

— Annul all costs orders made against the applicant by the Office for Harmonisation in the Internal Market (Trade Marks and Designs); and

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

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘BRIGHTON’, for goods in class 25

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

Mark or sign cited: Non-registered word and figurative trade marks ‘BRIGHTON’ and ‘Brighton’, used in the course of trade in the United Kingdom, Ireland, Germany and Italy in respect of belts; well-known word and figurative trade marks ‘BRIGHTON’ and ‘Brighton’, used in the course of trade in the United Kingdom, Ireland, Germany and Italy in respect of leather goods, hats, jewellery and watches

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation No 207/2009, as the Board of Appeal erred in law, in finding that the earlier rights on which the opposition was based not to have been substantiated; infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly excluded likelihood of confusion.
EN Official Journal of the European Union C 346/55

Action brought on 18 October 2010 — Höganäs v OHIM — Haynes (ASTALOY)

(Case T-505/10)

()

2010/C 346/108

Language in which the application was lodged: English

Parties

Applicant: Höganäs AB (Höganäs, Sweden) (represented by: L.-E. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal: Haynes International, Inc. (Kokomo, USA)

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 18 August 2010 in case R 1530/2009-4;

— Reject the opposition decision No B 85624; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “ASTALOY”, for goods in class 6 — Community trade mark application No 3890233

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: Community trade mark registration No 55400 of the word mark “HASTELLOY”, for goods in class 6

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Articles 8 and 9 of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of likelihood of confusion as well as in its assessment of the similarity of the contested trade mark.
—

annul Decision 2010/429/EU of the European Commission of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize MON 88017 x MON 810 (MON-88Ø17-3 x MON-ØØ81Ø-6) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council;
EN Official Journal of the European Union C 30/46

Action brought on 26 November 2010 — Adamowski v OHIM — Fagumit (FAGUMIT)

(Case T-537/10)

()

2011/C 30/84

Language in which the application was lodged: German

Parties

Applicant: Ursula Adamowski (Hamburg, Germany) (represented by: D. von Schultz, 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: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o. (Wolbrom, Poland)

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 3 September 2010 in Case R 1002/2009-1;

— dismiss the application for a declaration of invalidity of Community trade mark No 3 005 980;

— order OHIM to pay the costs incurred in removing the mark from the register, in the proceedings before the Board of Appeal, and in the present proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing the word element ‘FAGUMIT’ for goods in Classes 12 and 17.

Proprietor of the Community trade mark: Ursula Adamowski

Applicant for the declaration of invalidity: Fabryka Węży Gumowych i Tworzyw Sztucznych Fagumit Sp. z o.o.

Trade mark right of applicant for the declaration: National figurative mark containing the word element ‘FAGUMIT’ for goods in Class 17.

Decision of the Cancellation Division: Dismissal of the application for annulment.

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

Pleas in law: Infringement of Article 53(1)(c) of Regulation (EC) No 207/2009, (1) in conjunction with Article 8(4) thereof, since the other party to the proceedings before the Board of Appeal failed to provide legally valid evidence that the company name ‘FAGUMIT’ is actually used; infringement of Article 53(1)(b) of Regulation (EC) No 207/2009, in conjunction with Article 8(3) thereof, since the other party to the proceedings before the Board of Appeal effectively agreed to the registration of the trade mark rights associated with the name ‘FAGUMIT’, and infringement of Article 52(1)(b) of Regulation (EC) No 207/2009, since the applicant cannot be accused of acting in bad faith at the time when she filed her application for the contested Community trade mark.

(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 13/34

Action brought on 9 November 2010 — Inuit Tapiriit Kanatami and Others v Commission

(Case T-526/10)

()

2011/C 13/66

Language of the case: English

Parties

Applicants: Inuit Tapiriit Kanatami (Ottawa, Canada), Nativak Hunters and Trappers Association (Qikiqtarjuaq, Canada), Pangnirtung Hunters’ and Trappers’ Association (Pangnirtung, Canada), Jaypootie Moesesie (Qikiqtarjuaq, Canada), Allen Kooneeliusie (Qikiqtarjuaq, Canada), Toomasie Newkingnak (Qikiqtarjuaq, Canada), David Kuptana (Ulukhaktok, Canada), Karliin Aariak (Iqaluit, Canada), Canadian Seal Marketing Group (Quebec QC, Canada), Ta Ma Su Seal Products Inc. (Cap-aux-Meules, Canada), Fur Institute of Canada (Ottawa, Canada), NuTan Furs Inc. (Catalina, Canada), GC Rieber Skinn AS (Bergen, Norway), Inuit Circumpolar Conference Greeneland (ICC) (Nuuk, Greenland), Johannes Egede (Nuuk, Greenland), Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) (Nuuk, Greenland), William E. Scott & Son (Edinburgh, United Kingdom), Association des chasseurs de phoques des Îles-de-la-Madeleine (Cap-aux-Meules, Canada), Hatem Yavuz Deri Sanayi iç Ve Diș Ticaret Limited Șirketi (Istanbul, Turkey), Northeast Coast Sealers’ Co-Operative Society Limited (Fleur de Lys, Canada) (represented by: J. Bouckaert and H. Viaene, lawyers)

Defendant: European Commission

Form of order sought

— declare the action admissible;

— annul Regulation No 737/2010 pursuant to Article 263 TFUE;

— declare Regulation No 1007/2009 inapplicable pursuant to Article 277 TFUE;

— order the European Parliament and the European Council to pay the applicants’ costs;

— order the European Parliament and the European Council to pay their own costs.

Pleas in law and main arguments

By means of this application the applicants seek the annulment of Commission Regulation (EU) No 737/2010 of 10 August 2010 (1) laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (2). The annulment of Regulation No 1007/2009, providing for restrictions on the placing on the market of the European Union of the seal products, is sought by the applicants in the framework of Case T-18/10.

The applicants put forward two pleas in law in support of their claims.

First, they argue that the implementing regulation has for legal basis the basic regulation against which they raise an exception of illegality based on Article 277 TFUE. In this regard, the applicants repeat the arguments put forward in support of their claims in Case T-18/10 (3).

Second, in subsidiary order, the applicants submit that the Commission erred in law when adopting the implementing regulation since it misused the powers conferred to it by the basic regulation. In the applicants’ view, the Commission has used its powers for a purpose other than that for which they were conferred on it and they contend that the true aim pursued by the Commission, when adopting the implementing regulation, was to block any placing on the Union market of seal products.

(1) OJ 2010 L 216, p. 1

(2) OJ 2009 L 286, p. 36

(3) OJ 2010 C 100, p. 41