ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 92/31

Action brought on 23 January 2008 — Quantum v OHIM — Quantum Corporation (Quantum CORPORATION)

(Case T-31/08)

(2008/C 92/65)

Language in which the application was lodged: English

Parties

Applicant: Quantum Corp. (San Jose, United States) (represented by: J. Barry, Sollicitor)

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

Other party to the proceedings before the Board of Appeal: Quantum Corporation Ltd (Lefkosia, Cyprus)

Form of order sought

— The decision of the First Board of Appeal of 17 October 2007 in Case R 1271/2006-1 be annulled;

— appeal number R 1271/2006-1 be allowed;

— opposition number B 936 288 be permitted to stand and proceedings to continue;

— OHIM pay Quantum's costs both in these proceedings and in the appeal proceedings before the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: Quantum Corporation Limited

Community trade mark concerned: The figurative Community trade mark composed of the sign ‘Q’ containing word elements ‘QUANTUM CORPORATION’ for goods and services in classes 35, 36 and 42 — Application No 3 773 355

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

Mark or sign cited: The national and Community word marks ‘QUANTUM’ for goods and services in class 9 and the Community figurative mark ‘Q’ for goods and services in classes 9 and 42

Decision of the Opposition Division: Declared the opposition inadmissible

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant claims that the contested decision is based on incorrect facts as it fails to take into account the existence and nature of the opposition guidelines. The applicant further submits that the contested decision breached its legitimate expectation that the practice outlined in the opposition guidelines would be factually correct, since other potential opponents could also have relied on them. Further, the applicant contends that it had a legitimate expectation that the guidelines would be followed and that it would receive a ‘standard letter 208’ requiring it to file a translation of its writ in order to comply with the formal requirements. Finally, the applicant claims that OHIM must incur liability pursuant to Article 114 of Council Regulation (EC) No 40/94 in respect of its failure to comply with its obligations to provide up-to-date and accurate guidelines.
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declare that the contested decision is unlawful and annul that decision in its entirety inasmuch as it regards as State aid the contested measure, which in fact constitutes a lawful continuation of the measure by which the Italian State granted compensation to Terni SpA (and its assignees) for the expropriation of its electricity plants which occurred in 1962-63;
EN Official Journal of the European Union C 107/37

Action brought on 20 February 2008 — KUKA Roboter v OHIM (colour mark orange)

(Case T-97/08)

(2008/C 107/63)

Language in which the application was lodged: German

Parties

Applicant: KUKA Roboter GmbH (Augsburg, Germany) (represented by A. Kohn, 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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 14 December 2007 in Case R 1572/2007-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The contourless colour mark orange for goods in Class 7 (Application No 4 607 801)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 28 EC as the contested decision constitutes a measure having equivalent effect to a quantitative restriction on imports

— Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character

— Infringement of Articles 73 and 74 of Regulation No 40/94 as there is no or an insufficient statement of reasons for the contested decision and the facts have not been examined sufficiently

— Misuse of powers as the defendant took extraneous considerations into account in its statement of reasons for the contested decision in respect of the requirement of availability.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 107/35

Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission

(Case T-83/08)

(2008/C 107/60)

Language of the case: English

Parties

Applicants: Denki Kagaku Kogyo K.K. (Tokyo, Japan) and Denka Chemicals GmbH (Düsseldorf, Germany) (represented by: G. Van Gerven, T. Franchoo and D. Fessenko, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— To annul Articles 1, 2 and 3 of Commission Decision C(2007) 5910 final of 5 December 2007 in Case COMP/F/38.629 — Chloroprene Rubber;

— alternatively, to substantially reduce the fine imposed on the applicants pursuant to Article 2 of that decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application the applicants seek the annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber) relating to a proceeding under Article 81 EC and Article 53 EEA insofar as the Commission found that the applicants infringed Article 81 EC and that it imposed a fine on them requesting them to bring the alleged infringement to an end immediately.

In support of their claims, the applicants put forward six pleas in law:

On the basis of their first and second pleas, the applicants submit, first, that the Commission has made a manifest error of assessment in finding that the applicants participated in an infringement of Article 81 EC, since it has neither proved that the applicants shared a common objective with the other chloroprene producers in order to form a cartel, nor did it prove that the applicants participated in a concerted practice.

Second, the applicants claim that the Commission infringed their rights of defence and violated Article 253 EC and the principle of sound administration in that it did not provide access to Bayer's pleadings made during the in camera hearing.

On the basis of their third, fourth, fifth and sixth pleas, the applicants request the Court to reduce significantly the fine imposed by the Commission on the basis of Article 2 of the contested decision.

Namely, by their third plea, the applicants submit that the Commission has violated principles of legal certainty and non-retroactivity by calculating the fine on the basis of the 2006 Fining Guidelines instead of applying the 1998 Fining Guidelines.

By their fourth plea, the applicants contend that the Commission made a manifest error of assessment in relation to the calculation of the value of sales in determining the basic amount of the fine. Further, according to the applicants, the Commission allegedly breached the principle of proportionality in that the applicants were punished twice.

By their fifth plea, the applicants claim that the Commission made a manifest error of assessment regarding the duration of the cartel.

Finally, by the sixth plea, it is submitted that the Commission committed a manifest error of assessment and violated Article 253 EC and the principles of proportionality and equal treatment in that it failed to reduce the fine imposed on the applicants on account of mitigating circumstances.
EN Official Journal of the European Union C 116/25

Action brought on 28 February 2008 — Freixenet v OHIM (Shape of a frosted matt black bottle)

(Case T-110/08)

(2008/C 116/46)

Language in which the application was lodged: French

Parties

Applicant: Freixenet SA (Sant Sadurní d'Anoia, Spain) (represented by F. de Visscher, E. Cornu and D. Moreau, 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 20 November 2007 and, doing what that Board of Appeal should have done, decide that the application for Community trade mark No 32 540 satisfies the conditions for publication in accordance with Article 40 of the Regulation on the Community trade mark;

— In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 November 2007;

— In any case, order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark in the shape of a frosted matt black bottle for goods in class 33 (application No 32 540)

Decision of the Examiner: Reject the application

Decision of the Board of Appeal: Dismissal of the appeal; decision taken following the judgment of the Court of First Instance in Case T-188/04 Freixenet v OHIM (shape of a frosted matt black bottle)

Pleas in law: Infringement of Article 7(1) and (3) and Article 73 of Regulation No 40/94 and of the obligation to state reasons, to the extent that:

— The Board of Appeal failed to hear the applicant's observations with regard to the Board's different factual assessment;

— The Board of Appeal failed to specify the documents on which it bases its decision;

— The type of appearance of the bottle in question is original and differs from the usual types existing on 1 April 1996;
EN Official Journal of the European Union C 116/23

Action brought on 28 February 2008 — TNC Kazchrome and ENRC Marketing v Council and Commission

(Case T-107/08)

(2008/C 116/43)

Language of the case: English

Parties

Applicants: Joint stock company ‘Transnational Company Kazchrome’ (TNC Kazchrome) (Actobe, Kazakhstan), ENRC Marketing AG (Kloten, Switzerland) (represented by: L. Ruessmann and A. Willems, lawyers)

Defendants: Council of the European Union and Commission of the European Communities

Form of order sought

— Annul the contested regulation to the extent it imposes anti-dumping measures on imports of SiMn that is produced and/or sold by the applicants;

— order the Council and Commission jointly and severally to pay the applicants damages including interest for harm, that resulted from the wrongful initiation of the case, errors of facts, and erroneous assessment, including the Commission's violations of fundamental principles of Community law, and the wrongful adoption of Council Regulation (EC) No 1420/2007;

— order the Commission and Council to bear their own costs and those incurred by the applicants;

— order the Commission to bear its own costs and jointly and severally to bear those incurred by the applicants insofar as they are not covered by the Council.

Pleas in law and main arguments

The applicants, who are respectively producers and exporters of silico-manganese to the European Union, seek the annulment of Council Regulation (EC) No 1420/2007 of 4 December 2007 imposing a definitive anti-dumping duty on imports of silico-manganese originating in the People's Republic of China and Kazakhstan and terminating the proceedings on imports of silico-manganese originating in Ukraine (1).

In support of their application, the applicants submit that the defendants committed manifest errors of assessment, breached the Basic Regulation (2) and failed to state reasons in accordance with Article 253 EC by including Kazakhstan and excluding India from the anti-dumping investigation; by rejecting the applicants' claim that they operate as a single economic entity; when determining the applicants' export price; when assessing whether and to what extend the imports of silico-manganese from Kazakhstan caused injury to the Community industry; by cumulating the imports from Kazakhstan with the imports from China for the purposes of this assessment and when assessing the Community interest.

The applicants furthermore submit that the Community institutions breached their right to be heard and the principles of good administration, protection of the applicants legitimate expectations, non-discrimination and proportionality as, among others, the applicants were not given access to information that was relevant to the findings of the Community institutions and as the undertaking offered by the applicants was rejected.

(1) OJ 2007 L 317, p. 5.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).
EN Official Journal of the European Union C 142/35

Action brought on 14 April 2008 — Ferrero v OHIM — Tirol Milch (TiMi KINDERJOGHURT)

(Case T-140/08)

(2008/C 142/63)

Language in which the application was lodged: English

Parties

Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen, lawyer, and F. Jacobacci, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tirol Milch rGmbH (Innsbruck, Austria)

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 30 January 2008 in case R 628/2007-2; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A word mark consisting of the words ‘TiMi KINDERJOGHURT’ for goods in class 29 — application No 792 978

Proprietor of the Community trade mark: Tirol Milch reg. Gen. mbH

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Invalidity of the challenged trade mark

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and dismissal of the request for declaration of invalidity

Pleas in law: The Second Board of Appeal erred in establishing that the previous final decisions between the same parties and concerning the same trade mark are binding in the subsequent action for invalidity before the Cancellation Division and the Board of Appeal; Infringement of Article 8(1)(b) and 8(5) of Council Regulation No 40/94 as the challenged trade mark is similar to an earlier trade mark.
EN Official Journal of the European Union C 171/40

Action brought on 29 April 2008 — Frag Comercio Internacional v OHIM — Tinkerbell Modas (GREEN by missako)

(Case T-162/08)

(2008/C 171/78)

Language in which the application was lodged: English

Parties

Applicant: Frag Comercio Internacional, SL (Esparraguera, Spain) (represented by: E. Sugrañes, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tinkerbell Modas, Ltda (São Paulo, Brazil)

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 14 February 2008 in case R 1527/2006-2;

— reject the application for Community trade mark No 3 663 234; and

— order the other party to the proceedings before the Board of Appeal 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 ‘GREEN by missako’ for goods and services in classes 3, 25, 35 — application No 3 663 234

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

Mark or sign cited: The Community figurative trade mark ‘MI SA KO’ for goods in classes 18 and 25; the national figurative trade mark ‘MI SA KO’ for services in class 35

Decision of the Opposition Division: Dismissal of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as a mere global likelihood of confusion among consumers is required in order to deny a Community trade mark application.
EN Official Journal of the European Union C 158/20

Action brought on 21 April 2008 — Kido Industrial v OHIM — Amberes (SCORPIONEXO)

(Case T-152/08)

(2008/C 158/34)

Language in which the application was lodged: Spanish

Parties

Applicant: Kido Industrial Ltd (Seoul, Republic of Korea) (represented by: M. Mall, 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: Amberes, SA

Form of order sought

— Annulment in their entirety of the decision of the Board of Appeal No R 0287/2007-1 and of the decision of the Opposition Division No B 855 728 and

— Order that Amberes pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Kido Industrial Ltd.

Community trade mark concerned: Word mark ‘SCORPIONEXO’ (registration application No 3.886.249) for goods in Classes 9 and 28.

Proprietor of the mark or sign cited in the opposition proceedings: Amberes, SA.

Mark or sign cited in opposition: Spanish figurative marks (No 339.142, No 499.599, No 499.600 and No 339.140) and international figurative marks (No 206.346 and No 206.347) composed of the design of a scorpion and the word ‘ESCORPION’, for goods in Classes 6, 8, 12, 16, 20, 21 and 28; and in Classes 22, 24, 25 and 26 respectively. Spanish word mark ‘ESCORPION’ (No 555.764) for goods in Class 25. Community word mark ‘ESCORPION’ (No 778.217) for goods in Classes 22, 24, 25 and 26.

Decision of the Opposition Division: The Opposition Division, founding its decision solely on the earlier Spanish figurative mark No 339.142 allowed the opposition in respect of goods in Classes 9 and 28, and refused entirely the application for registration in respect of those goods.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 183/27

Action brought on 22 May 2008 — JOOP! v OHIM

(Case T-191/08)

(2008/C 183/51)

Language in which the application was lodged: German

Parties

Applicants: JOOP! GmbH (Hamburg, Germany) (represented by: H. Schmidt-Hollburg, W. Möllering, A. Löhde, H. Leo, A. Witte, T. Frank, A. Theil, H.-P. Rühland, B. Willers and T. Rein)

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 6 March 2008 in Case R 1822/2007-1;

— Order the Office for Harmonisation in the Internal Market to pay the costs including those incurred during the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: figurative mark representing an exclamation mark, for goods in Classes 14, 18 and 25 (Application No 5 332 176).

Decision of the Examiner: Rejection of the registration.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character and its availability does not have to be preserved.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1).
EN Official Journal of the European Union C 171/47

Action brought on 16 May 2008 — Schuhpark Fascies v OHIM — Leder & Schuh (jello SCHUHPARK)

(Case T-183/08)

(2008/C 171/89)

Language in which the application was lodged: German

Parties

Applicant: Schuhpark Fascies GmbH (Warendorf, Germany) (represented by: A. Peter and J. Braune, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Leder & Schuh AG (Graz, Austria)

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 13 March 2008 in appeal proceedings R 1560/2006-4;

— Order the defendant to pay the costs incurred by the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: Leder & Schuh AG.

Community trade mark concerned: The word and figurative mark ‘jello SCHUHPARK’ for goods in Classes 1, 3, 9, 14, 16, 18, 21, 24-26 and 28 (Application No 1 269 372).

Proprietor of the mark or sign cited in the opposition proceedings: Schuhpark Fascies GmbH.

Mark or sign cited in opposition: The German word mark ‘Schuhpark’ for goods in Class 25 (No 1 007 149), in respect of opposition to the registration for goods in Classes 18, 21, 25 and 26.

Decision of the Opposition Division: Opposition upheld in part and application rejected in part.

Decision of the Board of Appeal: Annulment of the appealed decision and rejection of the opposition.

Pleas in law: Infringement of the second sentence of Article 43(2) and Article 43(3) of Regulation (EC) No 40/94 (1) and breach of the second sentence of Rule 22(2) of Regulation (EC) No 2868/95 (2) in that the applicant has sufficiently proved that the opposition mark has been used in a manner which preserves its rights.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, 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 197/32

Action brought on 4 June 2008 — Amertranseuro International Holdings and Others v Commission

(Case T-212/08)

(2008/C 197/55)

Language of the case: English

Parties

Applicants: Amertranseuro International Holdings Ltd (London, United Kingdom), Trans Euro Ltd (London, United Kingdom) and Team Relocations Ltd (London, United Kingdom) (represented by: L. Gyselen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 2(i) of the Commission Decision of 11 March in Case COMP/38.543 — International removal services, in so far as it holds the applicants jointly and severally liable for Team Relocations NV's alleged infringement of Article 81 EC and Article 53 EEA in the period of January 1997 to September 2003;

— in the alternative, annul Article 2(i) of this Commission decision in so far as it does not effectively limit the joint and several liability of Amertranseuro Ltd to the amount of EUR 1,3 million;

— order the costs of the proceedings to be borne by the Commission.

Pleas in law and main arguments

The applicants seek partial annulment, pursuant to Article 230 EC, of Commission Decision C(2008) 926 final of 11 March (Case COMP/38.543 — International removal services) (‘the contested decision’), relating to a proceeding under Article 81(1) EC and Article 53(1) EEA. More specifically, the applicants seek the annulment of Article 2(i) of the contested decision in so far as it holds them jointly and severally liable for the alleged participation of Team Relocations NV (‘TRNV’) in the infringement described in Article 1 of the contested decision.

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

First, they submit that the Commission erred by holding all three of them liable in spite of the fact that they were neither aware, nor could have been aware of TRNV's involvement in the alleged infringement. Second, the applicants claim that the Commission misused its powers by imposing a fine which they are unable to pay.