ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 234/49

Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)

(Case T-287/10)

()

2010/C 234/88

Language in which the application was lodged: English

Parties

Applicants: Unilever España S.A. and Unilever N.V. (Barcelona, Spain) (represented by: C. Prat, lawyer)

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

Other party to the proceedings before the Board of Appeal:‘Med Trans’ G. Poulias-S. Brakatselos A.E. (Patra, Greece)

Form of order sought

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 April 2010 in case R 1025/2009-2;

— Request the Opposition division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to continue with the examination of the evidence, evaluating the applicability of Articles 8(1)(b), 8(4) and 8(5) of the CTMR;

— In the alternative, alter the contested decision, and decide on the merits of the case;

— Order the defendant to pay the costs.

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 figurative mark ‘MED FRIGO S.A.’, for goods and services in class 39

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

Mark or sign cited: Spanish trade mark registration No 112534 of the word mark ‘FRIGO’, for goods in class 30; Spanish trade mark registration No 123204 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 434378 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 767539 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 2148274 of the figurative mark ‘Frigo’ for goods in class 30; Spanish trade mark registration No 60893 of the word mark ‘FRIGO S.A.’ for ‘business named to ice creams and milk products manufacturing and production’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 19(2)(a)(ii) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly assessed that the applicant did not file all the necessary proof of existence, validity and scope of protection of its earlier trade mark upon which the opposition was based; infringement of Rule 19(3) in connection with Rule 98(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly considered that the translations filed by the applicant were not sufficiently clear and well-structured.
EN Official Journal of the European Union C 234/47

Action brought on 25 June 2010 — Milux v OHMI (STOMACONTROL)

(Case T-282/10)

()

2010/C 234/84

Language of the case: English

Parties

Applicant: Milux Holding S.A. (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 8 June 2010 in case R 1434/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘STOMACONTROL’ 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 to the facts of 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 260/17

Action brought on 30 June 2010 — CBp Carbon Industries v OHIM

(Case T-294/10)

()

2010/C 260/23

Language of the case: English

Parties

Applicant: CBp Carbon Industries, Inc. (New York, USA) (represented by: J. Fish, Solicitor and 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 21 April 2010 in case R 1361/2009-1;

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CARBON GREEN’ for goods in class 17 — Community trade mark application No 973531

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Article 7(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of the distinctiveness of the concerned word mark in relation to the relevant goods.

By its second plea, the applicant considers that the contested decision infringes Article 7(1)(c) of Council Regulation (EC) No 207/2009, as the Board of Appeal (i) erred in relation to the meaning and syntax of the concerned word mark, as well as its aptness or otherwise as an immediate and direct descriptive term for the goods in question; (ii) on the one hand correctly concluded that the relevant public was specialised, yet, on the other failed to establish facts of its own motion that showed the mark was descriptive to such public; and (iii) failed to establish on the evidence that there was, in the relevant specialised sphere, a reasonable likelihood that other traders would wish to use the sign in future.
EN Official Journal of the European Union C 246/37

Action brought on 8 July 2010 — DBV v Commission

(Case T-297/10)

()

2010/C 246/63

Language of the case: German

Parties

Applicant: DBV Deutscher Brennstoffvertrieb Würzburg GmbH (Würzburg, Germany) (represented by: C. Rudolph and A. Günther, lawyers)

Defendant: European Commission

Form of order sought

— declare void Commission Regulation (EU) No 404/2010 of 10 May 2010 imposing a provisional anti-dumping duty on imports of certain aluminium wheels originating in the People’s Republic of China;

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

Pleas in law and main arguments

The applicant is challenging Regulation (EU) No 404/2010, (1) by which the Commission imposed a provisional anti-dumping duty on imports of certain aluminium wheels originating in the People’s Republic of China.

As a basis for its action, the applicant first submits that there has been a breach of essential procedural requirements and of the rights of the defence in that, in the course of the procedure prior to adoption of the contested regulation, the applicant was not informed or given a hearing, with the result that it had no opportunity to defend its interests and set out its views.

Second, the applicant contends that there was a defective determination of the facts and an abuse of discretionary power. It submits in this regard that the background to the case was misrepresented and incorrectly investigated. The applicant argues that no account was taken of, for instance, the higher exchange rate of the dollar in the interim or of the increased prices of crude oil. The applicant further submits, in connection with its allegation of abuse of discretionary power, that the Commission failed to have regard for the principle of proportionality. An abuse of discretionary power and breach of Regulation (EC) No 1225/2009 (2) also lie, in the applicant’s view, inter alia in the fact that no suitable information was collected in the course of the investigations to establish differentiated duties.

(1) Commission Regulation (EU) No 404/2010 of 10 May 2010 imposing a provisional anti-dumping duty on imports of certain aluminium wheels originating in the People’s Republic of China (OJ 2010 L 117, p. 64).

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).
Official Journal of the European Union

Action brought on 10 August 2010 — Fraas v OHIM (Dark grey, light grey, beige and dark red coloured checked pattern)

(Case T-328/10)

()

(2010/C 288/85)

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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 7 June 2010 in Case R 190/2010-4;

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

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a dark grey, light grey, beige and dark red coloured checked pattern, for goods in Classes 18, 24 and 25.

Decision of the Examiner: Registration was refused.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

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

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

(Case T-349/10)

()

(2010/C 288/98)

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 29 June 2010 in case R 1436/2009-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘OVUMCONTROL’ 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 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.
(i)

Defects of reasoning in the contested decision that affect the rights of defence of Fapricela and have led to a rectification of the decision. The applicant claims that this rectification must be deemed void, as the recognition of material errors by the Commission prejudices the full exercise by Fapricela of its rights of defence and undermines the purpose of the present action, furthermore giving the European Commission the additional option of issuing the new amending decision having regard to the submissions of law and fact of the companies in this action.
Action brought on 27 August 2010 — Vtesse Networks v Commission

(Case T-362/10)

()

(2010/C 288/106)

Language of the case: English

Parties

Applicants: Vtesse Networks Ltd (Hertford, United Kingdom), (represented by: H. Mercer QC, Barrister)

Defendant: European Commission

Form of order sought

— Declare the application admissible;

— Annul paragraph 72 of Commission Decision C(2010) 3204 in state aid case N 461/2009 (OJ 2010 C 162, p. 1); and

— Order the defendant to pay the applicant’s costs incurred in this action.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Decision C(2010) 3204 in state aid case N 461/2009 (OJ 2010 C 162, p. 1), whereby it has been decided that the aid measure ‘Cornwall & Isles of Scilly Next Generation Broadband’, providing aid from the European Regional Development Fund to support the deployment of next generation broadband networks in the Cornwall & Isles of Scilly region, is compatible with Article 107(3)(c) TFEU.

In support of their action, the applicant submits the following pleas in law:

Firstly, the applicant alleges that the Commission committed manifest errors in the appreciation of the facts, in particular that the Commission found that: (a) There was an open, non-discriminatory and competitive tender process when it should have found that competition had been eliminated in relation to the tender; (b) Existing infrastructure was available to all bidders on request when the incumbent operator has openly admitted that it did not use infrastructure which was packaged into products and available to all bidders on request; (c) The overall effect on competition was positive when competition was eliminated by the actions of the incumbent operator.

In addition, the applicant contends that the Commission fails to apply and/or breaches Article 102 TFEU so that the assessment in the Commission Decision C(2010)3204 of the impact of the measure on competition is invalid and that therefore the said decision is unlawful and not within Article 107(3)(c) TFEU, the relevant abuses for Article 102 TFEU being: (a) Unlawful bundling with respect to existing infrastructure of dark fibre with active electronics; (b) Refusal of access for competing bidders to fibre and/or ducts; (c) Margin squeeze abuse through bundling fibre with active electronics to construct products which do not permit the Applicant or other competitors to compete in the Tender Process.
EN Official Journal of the European Union C 301/55

Action brought on 8 September 2010 — Roca Sanitario v Commission

(Case T-408/10)

()

2010/C 301/88

Language of the case: Spanish

Parties

Applicant: Roca Sanitario SA (Barcelona, Spain) (represented by: J. Folguera Crespo and M. Merola, lawyers)

Defendant: European Commission

Form of order sought

— Annulment in part of Articles 1, 2 and 4 of European Commission Decision C(2010) 4185 of 23 June 2010 in so far as they relate to Roca Sanitario;

— in the alternative, reduction of the fine imposed on Roca Sanitario, as requested in the application, to the extent that the Court deems appropriate for the reasons set out or for such other reasons as the Court may determine;

— in the further alternative, if the Court should give judgment in other actions brought by Roca France or Laufen Austria, reducing the fine imposed in the European Commission Decision of 23 June 2010 for infringements by these companies for which Roca Sanitario is jointly and severally liable, a declaration that Roca Sanitario is entitled to an equivalent reduction in the amount of the fine for which it is jointly and severally liable;

— an order that the Commission should pay the costs incurred by Roca Sanitario.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that contested in Case T-364/10 Duravit and Others v Commission and Case T-368/10 Rubinetteria Cisal v Commission.

The pleas in law and main arguments are similar to those relied on in those cases.

The applicant submits, in particular, that the Commission made a manifest error of assessment in determining that the applicant was jointly and severally liable for the infringements allegedly committed by Roca France and Laufe Austria, substantially exceeding the maximum amount of the fine that may be fixed under Article 23(2) of 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. (1)

It is also submitted that the contested decision disregards, without giving reasons, the considerable amount of evidence adduced, which, for the purposes of the attribution of liability and calculation of the fine, rebuts the presumption that the applicant exercised decisive influence over Roca France and Laufen Austria.

The applicant submits that the contested decision is contrary to the rights of the defence, since it attributed liability to the applicant on the basis of facts and subjective assessments not contained in the statement of objections, and in respect of which the applicant was not afforded the opportunity to give its views.

(1) OJ 2003 L 1, p. 1.
EN Official Journal of the European Union C 301/57

Action brought on 9 September 2010 — Roca v Commission

(Case T-412/10)

()

2010/C 301/92

Language of the case: Spanish

Parties

Applicant: Roca Sàrl (Saint Ouen L’Aumone, France) (represented by: P. Vidal Martínez, lawyer)

Defendant: European Commission

Form of order sought

— Annulment in part of Articles 1 and 2 of Commission Decision C(2010) 4185 of 23 June 2010 in so far as it imposes a disproportionate fine on Roca Sarl (‘Roca France’) for breach of Article 101 TFEU;

— accordingly, reduction of the fine imposed on Roca France, as requested in the present application, to the extent that the Court deems appropriate for the reasons set out or for such other reasons as the Court may determine, and

— an order that the Commission should pay the costs incurred by Roca France.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that contested in Case T-408/10 Roca Sanitario v Commission and Case T-411/10 Laufen Austria v Commission.

The pleas in law and main arguments are similar to those relied on in those cases.
EN Official Journal of the European Union C 317/41

Appeal brought on 20 September 2010 by Allen and Others against the Order of the European Union Civil Service Tribunal made on 13 July 2010 in case Allen and Others v Commission, F-103/09

(Case T-433/10 P)

()

2010/C 317/74

Language of the case: English

Parties

Appellant: John Allen (Horspath, United Kingdom) and Others (represented by: K. Lasok, QC and B. Lask, Barrister)

Other party to the appeal proceedings: European Commission

Form of order sought by the appellant

— Allow the appeal;

— Quash the Order of the European Union Civil Service Tribunal (First Chamber), dated 13 July 2010 in case F-103/09;

— Dismiss the first and second plea of admissibility raised by the defendant; and

— Order the costs of this appeal to be paid by the defendant.

Pleas in law and main arguments

By the present appeal, the appellants seek to have set aside the Order to the European Union Civil Service Tribunal (EUCST) of 13 July 2010, delivered in case F-103/09 Allen and Others v Commission, by which the EUCST dismissed as inadmissible the action by which the appellants have sought damages and the annulment of a decision refusing to pay damages in respect of the loss suffered by each applicant as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking.

In support of their appeal, the appellants submit that by concluding that an obligation to act within a reasonable period applied in the present context and, even if it did, by its approach to the duration and start point of that period, the EUCST acted contrary to the case law of the Court of Justice and to fundamental principles of European Union law.
EN Official Journal of the European Union C 328/50

Action brought on 8 October 2010 — The Pukka Luggage Company v OHIM — Jesus Miguel Azpiroz Arruti (PUKKA)

(Case T-483/10)

()

2010/C 328/78

Language in which the application was lodged: English

Parties

Applicant: The Pukka Luggage Company Ltd (London, United Kingdom) (represented by: K. E. Gilbert and M. H. Blair, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Jesús Miguel Azpiroz Arruti (San Sebastián, Spain)

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 29 July 2010 in case R 1175/2008-4;

— In the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘luggage’;

— Or in the alternative, annul the contested decision in respect of its finding that the opposition should succeed against ‘hard suitcases, hard trolley cases’;

— Order the defendant and the other party to the proceedings before the Board of Appeal to bear their costs of the proceedings as well as those incurred by the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘PUKKA’, for goods in class 18 — Community trade mark application No 4061545

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: Spanish trade mark registration No 1570450 of the figurative mark ‘PUKAS’, for goods in class 18; Community trade mark registration No 19802 of the figurative mark ‘PUKAS’, for goods and services in classes 25, 28 and 39

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Rejected the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in its assessment of the similarity of the goods and in its assessment of the similarity of the contested trade mark in relation to the earlier trade mark.
—

Infringement of the principle that both parties must be heard and the principle of effective protection. It is submitted in this connection that, in the case of the applicant, the Secretary-General of the European Parliament adopted the final decision on the basis of facts and legal grounds which are, in part, different from those previously relied on and made known to the applicant.