ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 267/71

Action brought on 20 August 2009 — Electrabel v Commission

(Case T-332/09)

2009/C 267/129

Language of the case: French

Parties

Applicant: Electrabel (represented by: M. Pittie and P. Honoré, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the application admissible and well founded;

— as the main plea, annul Articles 2 and 3 of the contested decision or at least reduce the amount of the fine imposed on the applicant under Article 2 of the contested decision;

— in any event, order the Commission to pay all the costs incurred by the applicant in connection with these proceedings.

Pleas in law and main arguments

By the present proceedings, the applicant seeks primarily the annulment of Commission Decision C(2009) 4416 final of 10 June 2009, by which the Commission found that the applicant had infringed Article 7(1) of Regulation No 4064/89 (1) by implementing a concentration having Community dimension before notifying it, and before it was declared compatible with the common market. The applicant seeks, in the alternative, the annulment or at least the reduction of the amount of the fine imposed on it by Article 2 of the contested decision.

In support of its action the applicant puts forward four pleas:

— incorrect classification of the infringement on account, in particular, of a confusion between the infringement consisting in the failure to notify the Commission and the infringement consisting in the advance implementation of the concentration and, therefore, a contradiction in the reasoning between the classification of the infringement and the substantive assessment of its duration;

— infringement of Articles 3(3) and 14(2) of Regulation No 4064/89 and the guidelines on the definition of concentration, by holding that there was an acquisition of de facto sole control of the Compagnie Nationale du Rhône by Electrabel on 23 December 2003. The applicant claims that the Commission has ignored relevant aspects of the case, in particular, the fact that the Compagnie Nationale du Rhône is a public company; that it has applied the definition of de facto sole control that it has established in its guidelines on the definition of concentration incompletely and erroneously and (iii) has committed several manifest errors of assessment relating, in particular, to the governance bodies of the Compagnie Nationale du Rhône;

— that the Commission's power to impose a fine in this case is time-barred and

— a breach of the principles of proportionality, sound administration and the principle of the protection of legitimate expectations by imposing a fine on the applicant of such a large amount for an infringement which had no effect on competition.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1; republished in its entirety in OJ 1990 L 257, p. 13, as rectifed).
EN Official Journal of the European Union C 256/28

Action brought on 29 July 2009 — Gühring OHG v OHIM (combination of the colours ochre yellow and silver grey)

(Case T-300/09)

2009/C 256/52

Language in which the application was lodged: German

Parties

Applicant: Gühring OHG (Albstadt, Germany) (represented by: A. von Mühlendahl and H. Hartwig, 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 OHIM of 30. April 2009 in Case R 1329/2008-1;

— Annul the decision of the defendant’s Examination Division dated 22 July 2008, in which it refused registration of the applicant’s mark Nr. 6 703 565;

— Declare, that the trade mark applied for No. 6 703 565 complies with the conditions laid down in Article 7(1)(b) of Regulation (EC) No 207/2009 (1); in the alternative,

— Annul the decision of the First Board of Appeal of OHIM of 30. April 2009 in Case R 1329/2008-1;

— Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: a mark made up of the combination of the colours of ochre yellow and silver grey for goods in Class 7 (registration application No. 6 703 565)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009 because the trade mark applied for has a distinctive character. In addition, infringement of procedural law, in particular of Articles 75 and 76 (1) of Regulation No 207/2009

(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 267/75

Action brought on 31 August 2009 — Germany v Commission

(Case T-347/09)

2009/C 267/135

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

— Declare Commission Decision SG-Greffe (2009) D/3985 on State aid No NN 8/2009 of 2 July 2009 null and void, to the extent that the measures notified are categorised as State aid within the meaning of Article 87(1) EC;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision K(2009) 5080, definitive since 2 July 2009, concerning aid rules which consist of, first, the free transfer of federally-owned national nature reserves and, second, support for large conservation projects (State aid NN 8/21009 — Germany — Conservation areas). In that decision, the Commission takes the view that the aid rules notified are compatible with the common market under Article 86(2) EC. The applicant challenges the contested decision, to the extent that the measures notified are categorised as State aid within the meaning of Article 87(1) EC.

As the basis of its action, the applicant claims that the defendant incorrectly applied Article 87(1) EC in a number of respects. In that regard, it is submitted, inter alia, that the defendant wrongly categorises conservation organisations as undertakings and wrongly failed to carry out the necessary overall assessment of the measures referred to. Furthermore, the conservation organisations have obtained no material advantage for State aid purposes from the measures referred to. The applicant further complains of an incorrect application of the fourth criterion laid down by the Court of Justice in Case C-280/00 Altmark Trans und Regierungspräsidium Magdeburg [2003] ECR I-7747.

In the alternative, a breach of the duty to state reasons laid down in Article 253 EC is claimed.
EN Official Journal of the European Union C 282/61

Action brought on 2 October 2009 — Annco v OHIM — Freche et fils (ANN TAYLOR LOFT)

(Case T-385/09)

2009/C 282/113

Language in which the application was lodged: English

Parties

Applicant: Annco, Inc. (New York, United States) (represented by: G. Triet, lawyer)

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

Other party to the proceedings before the Board of Appeal: Freche et fils associés SARL (Paris, France)

Form of order sought

— Declare the appeal well founded;

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 in case R 1485/2008-1;

— Alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 in case R 1485/2008-1, in favour of the registration of the Community trade mark concerned for classes 18 and 25, in addition to class 35;

— 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 mark “ANN TAYLOR LOFT”, for goods and services in classes 18, 25 and 35

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: French trade mark registration of the mark “LOFT” for goods in classes 18 and 25

Decision of the Opposition Division: Allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

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; infringement of Article 75 of Council Regulation 207/2009 as the Board of Appeal wrongly relied on evidence and reasons on which the applicant was not given the opportunity to comment.
EN Official Journal of the European Union C 282/49

Action brought on 4 September 2009 — mtronix v OHIM — Growth Finance (mtronix)

(Case T-353/09)

2009/C 282/95

Language in which the application was lodged: German

Parties

Applicant: mtronix OHG (Berlin, Germany) (represented by: M. Schnetzer, 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: Growth Finance AG

Form of order sought

— annul the contested decision of the Fourth Board of Appeal of OHIM of 23 June 2009 in Case R 1557/2007-4;

— alter the contested decision so that the opposition of Growth Finance AG is not upheld, in the alternative, that that opposition is dismissed and Application No 4 193 661 for the services in Class 9 is upheld and the application is continued also for that class;

— order the intervener to pay the costs of the proceedings, including those incurred during the appeal proceedings;

— in the alternative, order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: mtronix OHG

Community trade mark concerned: The word mark ‘mtronix’ for goods in Classes 9 and 10 (Application No 4 193 661)

Proprietor of the mark or sign cited in the opposition proceedings: Growth Finance AG

Mark or sign cited in opposition: The word mark ‘Montronix’ for goods and services in Classes 7, 9 and 42 (Community trade mark No 2 762 862), in respect of opposition to the registration for goods in Class 9

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal partially upheld

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

(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 297/31

Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

(Case T-404/09)

2009/C 297/47

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Forms of order sought

— Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Application No 6 733 315)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: In its assessment of the mark applied for, the Office for Harmonisation in the Internal Market applied criteria which are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods.
EN Official Journal of the European Union C 312/40

Action brought on 26 October 2009 — Centrotherm Systemtechnik v OHIM — centrotherm Clean Solutions (CENTROTHERM)

(Case T-434/09)

2009/C 312/67

Language in which the application was lodged: German

Parties

Applicant: Centrotherm Systemtechnik GmbH (Brilon, Germany) (represented by: J. Albrecht, 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: centrotherm Clean Solutions GmbH & Co KG (Blaubeuren, Germany)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 25 August in Case R 6/2008-4, in so far as the application for a declaration of revocation was upheld;

— order the applicant to pay the costs

— order the possible intervener to pay the costs of the intervention.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark CENTROTHERM for goods and services in Classes 11, 17, 19 and 42 (Community trade mark No 1 301 019)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: centrotherm Clean Solutions GmbH & Co KG

Decision of the Cancellation Division: Revocation of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and partial revocation of the Community trade mark

Pleas in law: Infringement of Article 57(5) in conjunction with Article 51(1) and (2) of Regulation (EC) No 207/2009 (1), as the defendant did not adequately assess proof of use which was submitted within the time-limit;

Infringement of the duty to examine the facts of its own motion;

Infringement of Article 76(1) and (2) and Article 57(1) of Regulation No 207/2009 and of Rule 40(5) of Regulation (EC) No 2868/95 (2), since the defendant did not take into consideration the proof of use submitted with the grounds of appeal;

Incorrect exercise of discretion, since the evidence submitted, even in the event that it was submitted late, is to be taken into consideration;

In the alternative, inapplicability of Rule 40(5) of Regulation No 2868/95 under Article 241 EC, since this rule infringes Article 76(1) and Article 57(1) in conjunction with Article 51(1) and Article 162(1) of Regulation No 207/2009, Article 202 EC and general principles of Community law, in particular the legal principle of proportionality, the principle of property rights and the right to a fair trial.

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 312/37

Action brought on 16 October 2009 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

(Case T-419/09)

2009/C 312/60

Language in which the application was lodged: French

Parties

Applicant: Cybergun (Bondoufle, France) (represented by: S. Guyot, 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: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany)

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of 5 August 2009 declaring the mark AK 47 to be invalid because of its descriptive character on the basis of Article 51(1)(a), a legal basis not referred to in the action,

— order, in accordance with Articles 87(2) and 91 of the Rules of Procedure, OHIM to pay the costs, including costs incurred by the applicant for the present proceedings, in particular the costs of translation of documents, lawyer’s fees, and, if costs of travel and accommodation are appropriate; the Court is asked to assess that sum at EUR 20 000.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought:‘AK 47’ for goods in Class 28 — Community trade mark No 4 528 378.

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: Umarex Sportwaffen GmbH & Co. KommanditGesellschaft

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

Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and declaration of invalidity of the Community trade mark

Pleas in law:

The legal basis, namely Article 51(1)(a) of Regulation (EC) No 40/94 [now article 52(1) (a) of Regulation (EC) No 207/2009] on which the annulment of the mark was founded because of its descriptive character, was never referred to in the pleadings before the First Board of Appeal and in any event the assessment of the descriptive character of the mark is incorrect.
EN Official Journal of the European Union C 11/35

Appeal brought on 11 November 2009 by Eckehard Rosenbaum against the judgment of the Civil Service Tribunal delivered on 10 September 2009 in Case F-9/08 Rosenbaum v Commission

(Case T-452/02 P)

2010/C 11/65

Language of the case: German

Parties

Appellant: Eckehard Rosenbaum (Bonn, Germany) (represented by H.-J. Rüber, lawyer)

Other parties to the proceedings: Commission of the European Communities and Council of the European Union

Form of order sought by the appellant

— set aside the judgment delivered on 10 September 2009 by the Civil Service Tribunal in the case of Rosenbaum v Commission;

— set aside the Commission’s grading decision of 13 February 2007;

— require the Commission to grade the appellant in a manner which is non-discriminatory and consistent with his professional experience, and to take all further necessary measures resulting from the judgment;

— order the Commission to pay all costs relating to the dispute.

Pleas in law and main arguments

The appeal has been brought against the judgment of the Civil Service Tribunal of 10 September 2009 in Case F-9/08 Rosenbaum v Commission, by which the action brought by the present appellant was dismissed.

In support of his appeal, the appellant first of all submits that the Civil Service Tribunal conducted an incomplete examination of the first plea in law. The Civil Service Tribunal, the appellant continues, also erred in law in rejecting the other three pleas as these, in contrast to the view taken by the Tribunal, were appropriate for the purpose of setting aside the contested measure. In conclusion, the appellant expresses the view that the lack of higher-quality selection procedures has a bearing on the issue of the legality of the contested decision and that the rejection of the evidence adduced in this connection is for that reason unlawful.
EN Official Journal of the European Union C 11/29

Action brought on 21 October 2009 — Bayerische Asphalt-Mischwerke v OHIM — Koninklijke BAM Groep (bam)

(Case T-426/09)

2010/C 11/56

Language in which the application was lodged: English

Parties

Applicant: Bayerische Asphaltmischwerke GmbH & Co. KG für Straβenbaustoffe (Hofolding, Germany) (represented by: R. Kunze, lawyer and Solicitor, and G. Würtenberger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Koninklijke BAM Groep NV (Bunnik, The Netherlands)

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 11 August 2009 in case R 1005/2008-2, in so far as the opposition was rejected with respect to “non-metallic rigid piping for building; transportable structures; monuments, not of metal; building construction; repairs; repair and maintenance”;

— Grant the opposition against the Community trade mark concerned also for “non-metallic rigid piping for building; transportable structures; monuments, not of metal; building construction; repairs; repair and maintenance”;

— 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 “bam”, for goods and services in classes 6, 19, 37 and 42

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

Mark or sign cited: German trade mark registration of the figurative mark “bam”, for goods in classes 7 and 19

Decision of the Opposition Division: Allowed the opposition partially

Decision of the Board of Appeal: Annulled partially the decision of the Opposition Division

Pleas in law: Infringement of Articles 8(1)(b) Council Regulation No 207/2009 as the Board of Appeal failed to conclude that there was similarity between the goods and services covered by the Community trade mark concerned, on one hand, and the goods covered by the trade mark cited in the opposition proceedings, on the other hand; misuse of power as the Board of Appeal acted ultra vires; infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to deal, in a comprehensive manner, with the applicant’s arguments set forth in the appeal substantiation; infringement of Article 63(1) of Council Regulation No 207/2009 as the Board of Appeal erred in limiting the scope of protection of the Community trade mark concerned and, thus, wrongly failed to take into account all relevant factors.
EN Official Journal of the European Union C 24/55

Action brought on 4 November 2009 — Centre national de la recherche scientifique v Commission

(Case T-448/09)

2010/C 24/99

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Declare the action admissible and well founded;

— order the Commission to refund the amount allegedly receivable of EUR 110 102,26, together with interest on late payment at the statutory rate in accordance with Belgian law governing the contract, claimed by the Commission under the contract by its debit note of 29 June 2009 (Ref No 3230906067) and which gave rise to a set-off measure dated 17 August 2009 (Ref BUDG/C3 D(2009) 10.5 — 1232);

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the Centre national de la recherche scientifique (CNRS) requests the Court to order the Commission to refund the amount receivable (EUR 110 102,26) referred to in debit note No 3230906067 of 29 June 2009, which is allegedly payable by the applicant under the EURO-THYMAIDE contract relating to a project under the Sixth Framework Programme for Research and Development, and which gave rise to a set-off measure dated 17 August 2009, together with interest on late payment.

The applicant puts forward three pleas in law in support of its application, alleging:

— failure to comply with the contractual criteria for justification of costs, in that the Commission failed to apply Article II.19.1 of the General Conditions of the EURO-THYMAIDE contract relating to eligible costs; and, in the alternative, with the obligation of good faith laid down by Article 1134 of the Belgian Civil Code — by dismissing evidence of the direct costs of staff involved in the project, the evidential value of which was nevertheless obvious. This approach caused the Commission erroneously to reject certain direct personnel costs and to make adjustments which resulted in the disputed claim;

— the erroneous assessment of the Provision pour Perte d’Emploi (loss of employment provision; ‘PPE’) in the light of the criteria laid down by Articles II.19.1, II.19.2.c and II.20 of the General Conditions of the EURO-THYMAIDE contract, in so far as, contrary to its misleading name, PPE is a personnel cost associated with unemployment insurance that is indissociable from eligible personnel costs. By refusing to allow eligible costs to include amounts corresponding to the PPE levied against the pay of temporary CNRS staff involved in the project, the Commission infringed the requirements referred to above;