ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 120/17

Appeal brought on 3 March 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 14 December 2010 in Case F-1/10, Marcuccio v Commission

(Case T-126/11 P)

2011/C 120/39

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

— In any event, set aside the judgment under appeal, in so far as the court at first instance: (a) rejected as inadmissible some of the claims made by the appellant in the proceedings at first instance; (b) rejected certain other claims made at first instance on the ground that they were closely connected with those rejected as inadmissible: (c) ordered the appellant to bear his own costs in the proceedings at first instance.

— Declare that all the claims made at first instance were admissible in their entirety and without any exception.

— Allow in their entirety and without exception those claims made at first instance which were rejected as inadmissible or dismissed by the court at first instance, so that all the claims made at first instance, which, for all legal intents and purposes, are to be deemed to be reproduced in the present application, are allowed by the Court on the basis of the part of judgment under appeal that is favourable to the appellant in conjunction with the judgment to be delivered by this appeal court.

— Order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings.

— In the alternative, refer the case under appeal back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision on the claims which were unlawfully rejected as inadmissible by the court at first instance and the claims unlawfully dismissed by that court.

Pleas in law and main arguments

The present appeal is brought against the judgment delivered by the Civil Service Tribunal on 14 December 2010. That judgment dismissed in part an action for annulment of the decision refusing reimbursement at the normal rate of various medical expenses and the decision refusing supplementary reimbursement, namely at the rate of 100 %, of those medical expenses, and an order that the Commission pay to the appellant a certain sum in respect of the medical expenses owing to him.

The appellant relies on three grounds of appeal.

1. First ground, alleging that the findings in the judgment under appeal concerning the object of the action and those relating to the Commission’s plea of inadmissibility were unlawful.

2. Second ground, alleging incorrect and unreasonable interpretation and application of Articles 90 and 91 of the Staff Regulations of Officials of the European Union and illogical failure to have regard to the relevant case-law.
1.

First plea in law, alleging that the CST disregarded the interest of the service and of the post, and infringed Articles 2 and 47 of the Conditions of employment of other servants of the European Union and the obligation to state reasons, insofar as the CST held in paragraph 62 of the judgment under appeal that ‘before an agency dismisses a member of staff employed under a contract of indefinite duration on the ground that the tasks to which that member of staff was assigned have been cancelled or transferred to another body, the agency concerned is under an obligation to consider whether the person concerned can be reassigned to another post already in existence or soon to be created, in particular, following the attribution of new responsibilities to the agency concerned’.
EN Official Journal of the European Union C 145/37

Action brought on 28 March 2011 — MIP Metro v OHIM — Jacinto (My Little Bear)

(Case T-183/11)

2011/C 145/62

Language in which the application was lodged: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Manuel Jacinto, Lda (S.Paio de Oleiros, Portugal)

Form of order sought

— Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registration No 384674 on 23 March 2011;

— In case that the request for the stay of proceedings is not granted, to continue the proceeding and to;

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2011 in case R 494/2010-1; and

— Order the defendant to pay the costs, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘My Little Bear’, in brown, black, white and red, for goods in classes 12, 18, 20, 24, 25 and 28 — Community trade mark application No W00962622

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Portuguese trade mark registration No 384674 of the figurative mark ‘Little Bear’, for goods in class 18

Decision of the Opposition Division: Rejected the application for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there would be a likelihood of confusion between the applied mark and the opposed mark, due to the fact that the verbal elements would be the dominant elements in the complex marks.
—

By the first part of the plea, the applicant argues that the procedure followed by the Council was not of an adversarial nature, in so far as the Council failed to provide, as soon as possible after the publication of the contested measures, information permitting the applicant to understand the reasons for the measures taken in his regard and, later refused the applicant’s subsequent requests for information, which meant that the applicant was deprived of his right to exercise usefully any action of an administrative nature seeking to have those measures lifted;
2.

Second plea in law, alleging a manifest error of assessment in so far as — the applicant is alleged to have refused recognise the authority of M. A. Ouattara, although he attempted to subject the BCEAO (Central Bank of West African States) for which he was governor, to his authority; — the applicant is alleged to have helped to fund the illegitimate administration of M. L. Gbagbo, although such support cannot be inferred from the operations of the BCEAO; — in addition, the applicant was no longer governor of the BCEAO at the time of adoption of the contested Regulation and Decision.
EN Official Journal of the European Union C 194/19

Action brought on 26 April 2011 — Glaxo Group v OHIM — Farmodiética (ADVANCE)

(Case T-243/11)

2011/C 194/32

Language in which the application was lodged: English

Parties

Applicant: Glaxo Group Ltd (Greenford, United Kingdom) (represented by: O. Benito, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Farmodiética — Cosmética, Dietética e Produtos Farmacêuticos, Lda (Estarda de S.Marcos, Portugal)

Form of order sought

— Stay the proceedings until an invalidity action in Portugal is decided since this invalidity action is challenging the only basis upon which the CTM No 6472971 was rejected, and if this invalidity action is not successful;

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2011 in case R 665/2010-4; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ADVANCE’, for goods in class 5 — Community trade mark application No 6472971

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited in opposition: Portuguese trade mark registration No 417744 for the figurative mark ‘ADVANCIS CAPS MORE BIOAVAILABLE. MORE EFFECTIVE’, for goods in classes 3 and 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 65(2) of Council Regulation No 207/2009, as the Board of Appeal: (i) deemed that the applicant did not challenge the opposition division’s decision of 25 February 2010 as regards the similarity of the goods concerned, (ii) deemed that there was no reason to depart from the opposition division’s decision of 25 February 2010 as regards the similarity of the goods concerned, (iii) did not analyse whether the goods concerned in class 3 are similar or dissimilar to the goods concerned in class 5, (iv) did not explain why it was relevant to take into account how the signs are pronounced in English when the relevant territory is Portugal, (v) deemed that the conflicting marks are similar from an aural point of view in English, (vi) applied the incorrect tests as regards comparison of the signs, thus wrongly finding the level of similarity to be average, and (vii) applied incorrect and incomplete tests in assessing global likelihood of confusion.
EN Official Journal of the European Union C 186/26

Appeal brought on 1 April 2011 by the European Commission against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07 Strack v Commission

(Case T-197/11 P)

2011/C 186/50

Language of the case: German

Parties

Appellant: European Commission (represented by P. Costa de Oliveira and B. Eggers, Agents)

Other party to the proceedings: Guido Strack (Cologne, Germany)

Form of order sought by the appellant

— Set aside the judgment of the Civil Service Tribunal in Case F-121/07 Strack v Commission in so far as in that judgment the Civil Service Tribunal rejected the objection of lack of jurisdiction raised by the Commission;

— Order each party to bear its own costs.

Pleas in law and main arguments

In support of the appeal, the appellant relies on the following plea in law.

Infringement of European Union law, and in particular the division of competences between the General Court and the Civil Service Tribunal as a specialised court as apparent from Article 270 TFEU read in conjunction with Article 91(1) of the Staff Regulations of Officials of the European Union, Article 8(3) of Regulation (EC) No 1049/2001, (1) the first sentence of Article 256(1) TFEU and Article 62a and Article 1 of Annex 1 to the Statute of the Court of Justice of the European Union.

— According to those provisions, the Civil Service Tribunal does not enjoy general jurisdiction in respect of all disputes between the European Union and any person to whom the Staff Regulations apply but only in respect of those disputes which concern the legality of an act which adversely affects such person within the meaning of Article 90(2) of the Staff Regulations.

— Where an official submits an application for access to documents, he is acting as an ordinary citizen for the purposes of Regulation No 1049/2001. A specific system of remedies is available to him under the Regulation in the form of an action for annulment before the General Court. The system of remedies according to the Staff Regulations and the Transparency Regulation are purely and simply incompatible.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
EN Official Journal of the European Union C 211/27

Action brought on 9 May 2011 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

2011/C 211/59

Language of the case: English

Parties

Applicant: Kaltenbach & Voigt GmbH (Biberach an der Riß, Germany) (represented by: M. Graf, lawyer)

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

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 1 March 2011 in case R 2361/2010-2;

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

Pleas in law and main arguments

Community trade mark concerned: The figurative mark in words ‘3D eXam’ for goods in class 10

Decision of the Examiner: Refused the protection of the international registration to the European Union pursuant to Article 7(1)(b), (c) and Article 2 CTMR

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009 and the failure to take into account prior national registrations/grants of protection, as the International registration at issue: (i) is not purely descriptive, and; (ii) exhibits distinctiveness as the relevant public will consider the sign ‘3D eXam’ as an indication of trade origin.
EN Official Journal of the European Union C 211/31

Action brought on 24 May 2011 — Video Research USA/OHMI (VR)

(Case T-267/11)

2011/C 211/65

Language of the case: English

Parties

Applicant: Video Research USA, Inc. (New York, U.S.A.) (represented by: B. Brandreth, Barrister)

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

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 8 March 2011 in case R 1187/2010-2;

— Remit the case to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with a recommendation that restitutio in integrum be granted in respect of community trade mark application No 919324;

— Order the defendant to pay the costs incurred before the Board of Appeal and the General Court.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘VR’ — Community trade mark registration No 919324

Decision of the Trade Marks and Register Department: Rejected the request for restitutio in integrum and confirmed the cancellation of the Community trade mark registration No 919324

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 81 of Council Regulation No 207/2009, as the Board of Appeal erred in the application of this article and in its assessment of the facts in holding that the applicant’s representatives had failed to exercise due care in the circumstances.
1.

First plea in law, alleging that the choice of addressee for the contested decision was incorrect, in breach of Article 18(1) of Regulation No 1/2003, in that the contested decision was addressed to Italmobiliare, a mere financial holding company — which, moreover, does not hold 100 % of the capital — instead of to Italcementi, which is the operating holding company in the group. The Commission thus acted in breach of the principle of audi alteram partem and the principle of the protection of legitimate expectations, selecting the applicant as the addressee of the contested decision when that company has to date remained completely outside the ambit of the investigation. The applicant pleads, lastly, breach of the principle of non-discrimination, since Italmobiliare is the only company to be involved in the procedure which is purely a financial holding company.
3.

Third plea in law, alleging an infringement of the duty to state reasons in the measure where, first, the freezing of funds is a penalty decided upon by a political body, second, no procedure for removal from the list is mentioned in the contested regulation, third, the applicant’s fundamental rights have been infringed at every stage of the procedure and, fourth, the statement of reasons for the measures is general, without foundation, vague and imprecise.
EN Official Journal of the European Union C 238/33

Action brought on 17 June 2011 — Fortress Participations v OHIM — Fortress Investment Group and Fortress Investment Group (UK) (FORTRESS)

(Case T-315/11)

2011/C 238/56

Language in which the application was lodged: English

Parties

Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented by: M.L.J. van de Braak, lawyer, B. Ladas, Solicitor, and S. Malynicz, Barrister)

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

Other parties to the proceedings before the Board of Appeal: Fortress Investment Group LLC (New York, USA) and Fortress Investment Group (UK) Ltd (London, United Kingdom)

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 8 March 2011 in case R 355/2009-2; and

— Order the defendant and the other parties to the proceedings to pay their own costs of the proceedings before the Office and the General Court and pay those of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘FORTRESS’, for services in classes 35, 36 and 42 — Community trade mark registration No 2095784

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity of the Community trade mark: The other parties to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The parties requesting the declaration of invalidity grounded their request on relative grounds for invalidity pursuant to Articles 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009. It was also based on United Kingdom non registered trade marks ‘FORTRESS’, ‘FORTRESS INVESTMENTS’, and ‘FORTRESS INVESTMENT GROUP’, used in the course of trade.

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Annulled the contested decision

Pleas in law: Infringement of Article 8(4) of Council Regulation (EC) No 207/2009, as the Board of Appeal failed properly to analyse the question of goodwill under the UK law of passing off and failed properly to assess the risk of misrepresentation and consequent damage.
EN Official Journal of the European Union C 252/43

Action brought on 29 June 2011 — Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS)

(Case T-353/11)

2011/C 252/94

Language in which the application was lodged: English

Parties

Applicant: Event Holding GmbH & Co. KG (Köln, Germany) (represented by: G. Schoenen and V. Töbelmann, lawyers)

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

Other party to the proceedings before the Board of Appeal: CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

— Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 March 2011 in case R 939/2010-2;

— Order the defendant to pay its own costs as well as the costs of the Applicant; and

— Order the other party to the proceedings, if it becomes intervener before the Tribunal to bear its own costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘eventer EVENT MANAGEMENT SYSTEMS’, for goods and services in classes 9, 35, 41 and 42 — Community trade mark application No 6483606

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

Mark or sign cited in opposition: German trade mark registration No 39 548 073.6 of the word mark ‘Event’, for services in classes 35, 36, 42 and 43

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there were no grounds for a rejection of the Community trade mark application ‘eventer EVENT MANAGEMENT SYSTEMS’. Given the similarity of the trade marks, and the similarity of the services covered by both trade marks, there is a likelihood of confusion between the two trade marks.
EN Official Journal of the European Union C 238/33

Action brought on 21 June 2011 — Morelli v OHIM — Associazione Nazionale Circolo del Popolo della Libertà (PARTITO DELLA LIBERTÀ)

(Case T-321/11)

2011/C 238/57

Language in which the application was lodged: Italian

Parties

Applicant: Raffaello Morelli (Livorno, Italy) (represented by: G. Frenelli, lawyer)

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

Other party to the proceedings before the Board of Appeal: Associazione Nazionale Circolo del Popolo della Libertà (Milan, Italy)

Form of order sought

The applicant claims that the Court should:

— annul the First Board of Appeal’s decision of 17 March 2011 and that of the Opposition Division of 14 May 2010;

— declare that the applicant’s opposition to the application for registration of a trade mark No 5.890.009 is upheld and refuse the application for that mark;

— order the Associazione Nazionale Circolo del Popolo della Libertà to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Associazione Nazionale Circolo del Popolo della Libertà

Community trade mark concerned: Word mark ‘PARTITO DELLA LIBERTÀ’ (application for registration No 5.890.009), for goods and services in classes 9, 14, 16, 24, 25, 35, 36, 38, 41, 42 and 45.

Proprietor of the mark or sign cited in the opposition proceedings: Raffaello Morelli

Mark or sign cited in opposition: Domain name ‘partitodellaliberta.it’, assigned by the Autorità proposta all’assegnazione dei domini ‘it’ to Raffaello Morelli on 9 August 2004, which the opponents claimed was used in the course of trade for goods and services in classes 16, 35, 38, 41 and 45

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Misapplication of Article 8(4) of Regulation No 207/2009 on the Community trade mark, incorrect appraisal of ‘use in the course of trade’ with reference to a name used in the sphere of politics and incorrect appraisal of the documents proving business use of the earlier sign.
1.

First plea in law, alleging infringement of Article 89(1) and (2) and Article 92 of the Financial Regulation, Article 135(1) and (5) of the Implementing Regulation and Article 49 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, (1) and of the principles of transparency, equality and proportionality in so far as the European Commission requires the tenderer to provide ‘the valid ISO certificate for the whole of its maintenance activity, issued by the certification body’. The applicant complains, first, that the European Commission did not set out the selection criterion clearly and precisely in the absence of any specification in the tender specifications of the ISO certification number which was required to be submitted, second, that it required from the tenderers ISO certification ‘for the whole of their maintenance activity’ and not only for the market concerned and, third, that it did not allow the tenderers to demonstrate that their level of quality was similar to that of the ISO certification.