ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 167/21

Action brought on 25 May 2009 — El Jirari Bouzekri v OHIM — Nike International (NC NICKOL)

(Case T-207/09)

2009/C 167/42

Language in which the application was lodged: English

Parties

Applicants: Mustapha El Jirari Bouzekri (Malaga, Spain) (represented by: E. Ragot, lawyer)

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

Other party to the proceedings before the Board of Appeal: Nike International Ltd (Beaverton, United States)

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 25 February 2009 in case R 554/2008-2 in so far as it contains an error of law in the interpretation of Article 8(5) of Council Regulation 40/94 (which became Article 8(5) of Council Regulation 207/2009); and

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the applicant’s legal and other costs incurred in the proceedings before the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘NC NICKOL’, for goods in class 9

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

Mark or sign cited: Community trade mark registration of the figurative mark ‘NIKE’ for a range of goods, amongst them goods in classes 9 and 25

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that the conditions for the application of the said provision were fulfilled.
EN Official Journal of the European Union C 180/53

Action brought on 14 May 2009 — HIT Trading and Berkman Forwarding v Commission

(Case T-191/09)

2009/C 180/99

Language of the case: Dutch

Parties

Applicants: HIT Trading BV (Barneveld, Netherlands) and Berkman Forwarding BV (Barendrecht, Netherlands) (represented by: A.T.M. Jansen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— HIT Trading claims that the Court of First Instance should annul the Commission’s decision of 12 February 2009 in Case REC 08/01 and declare that the post-clearance recovery of customs duties and anti-dumping duties is to be waived since the remission of those duties is justified.

Pleas in law and main arguments

The applicants submit that the Commission wrongly decided that the post-clearance recovery of customs duties and anti-dumping duties was justified, and that the Commission was wrong to find that there was no special situation for the purposes of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

The applicants puts forward the following grounds in support of that submission:

— The Commission finds that the Pakistan customs authorities made an active error within the meaning of Article 220(2)(b) of Regulation No 2913/92 as regards preferential origin. The Commission wrongly takes the view that, as regards non-preferential origin, this error is not an error within the meaning of Article 220(2)(b) of Regulation No 2913/92.

— The Commission wrongly finds that the applicants were not careful in regard to the declarations lodged after 10 September 2004.

— In its examination of the question whether post-clearance recovery may be waived or whether a special situation exists, the Commission has failed, without justification, to fulfil its obligations.

— The Commission finds that the Pakistan customs authorities made an active error within the meaning of Article 220(2)(b) of Regulation No 2913/92 as regards preferential origin. The Commission wrongly takes the view that, as regards non-preferential origin, this error does not give rise to a special situation for the purposes of Article 239 of Regulation No 2913/92.

— It is not clear from the contested decision that the Commission genuinely weighed up the Community’s interest in compliance with customs regulations against the interests of importers, acting in good faith, in not being subject to disadvantage beyond the normal commercial risks.
EN Official Journal of the European Union C 205/45

Action brought on 6 July 2009 — i-content Ltd Zweigniederlassung Deutschland v OHIM (BETWIN)

(Case T-258/09)

2009/C 205/82

Language in which the application was lodged: German

Parties

Applicant: i-content Ltd Zweigniederlassung Deutschland (Berlin, Germany) (represented by A. Nordermann, lawyer)

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

Form of order sought

— Annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2009 in appeal case R 1528/2008-4 concerning Community trade mark application No 006849641 — word mark: BETWIN — and the earlier decision of the Office of 10 September 2008 concerning Community trade mark application No 006849641 — word mark: BETWIN;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘BETWIN’ for services in Classes 35, 38 and 41 (application No 6849641)

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Council Regulation (CE) No 207/2009 (1)) as the mark applied for has the requisite distinctive character and there is no need to maintain it in the public domain; Infringement of Article 79 of Regulation (EC) No 207/2009, the principle of equal treatment in connection with Articles 6 and 14 ECHR; infringement of Article 49 EC

(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 205/46

Action brought on 10 July 2009 — Serrano Aranda v OHIM — Burg Groep (LE LANCIER)

(Case T-265/09)

2009/C 205/85

Language in which the application was lodged: Spanish

Parties

Applicant: Enrique Serrano Aranda (Murcia, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, 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: Burg Groep BV (Bergen, Netherlands)

Form of order sought

— Annulment of the decision of the First Board of Appeal of OHIM of 27 March 2009 in Case R-366/2008-1.

— On the basis of that annulment, uphold the opposition and implement the legal consequences arising therefrom by rejecting Community trade mark application 3 343 365 in its entirety.

— Order OHIM and any intervening parties to pay the costs of these proceedings, should they be opposed, and reject the forms of order which OHIM and the intervening parties seek.

Pleas in law and main arguments

Applicant for a Community trade mark: Burg Groep B.V.

Community trade mark concerned: Figurative mark containing the word component ‘LE LANCIER’ (Application No 3 343 365) for goods in Classes 29 and 30.

Proprietor of the mark or sign cited in the opposition proceedings: Enrique Serrano Aranda.

Mark or sign cited in opposition: Spanish word mark ‘EL LANCERO’ No 838 740 for goods in Class 30; Spanish figurative mark No 941 979 containing the word component ‘EL LANCERO’ for goods in Class 30; Spanish word mark No 943 767‘EL LANCERO’ for goods in Class 31, and Spanish word mark No 1 806 835‘El LANCERO’ for goods in Class 29.

Decision of the Opposition Division: The opposition was rejected.

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

Pleas in law: Misapplication of Article 8(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 220/38

Action brought on 14 July 2009 — Deutsche Bahn v OHIM — DSB (IC4)

(Case T-274/09)

2009/C 220/80

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by: E. Haag, 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: DSB (Copenhagen, Denmark)

Form of order sought

— Annul the contested decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 30 April 2009 and the decision of the Opposition Division of 26 July 2007;

— order OHIM to pay all the costs of the proceedings, including those incurred during the appeal and opposition proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: DSB

Community trade mark concerned: the word mark ‘IC4’ for goods in Class 39 (application No 4 255 411)

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

Mark or sign cited in opposition: the word mark ‘ICE’ for goods and services in Classes 6, 7, 9, 11, 12, 19, 37, 38, 39, 41 and 42 (Community trade mark No 170 605) and the German figurative mark ‘IC’ for services in Classes 39 and 42 (No 1 009 258)

Decision of the Opposition Division: rejection of the opposition

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) since there is a likelihood of confusion between the opposing marks.

(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 220/38

Action brought on 16 July 2009 — Sepracor Pharmaceuticals (Ireland) v Commission

(Case T-275/09)

2009/C 220/81

Language of the case: English

Parties

Applicant: Sepracor Pharmaceuticals (Ireland) Ltd (Dublin, Ireland) (represented by: I. Dodds-Smith, Solicitor, D. Anderson, QC and J. Stratford, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— order that the applicant’s costs of these proceedings are paid by the Commission.

Pleas in law and main arguments

By means of this application, the applicant seeks the annulment, pursuant to Article 230 EC, of the Commission decision by which the Commission, confirming the opinion issued by the Committee for Medicinal Products for Human Use of the European Medicines Agency (EMEA), granted the marketing authorisation for the applicant’s product ‘Lunivia’ but considered that the ‘eszopiclone’ contained in it was not a new active substance under Article 3(2) (a) of Regulation No 726/2004 (1).

The applicant puts forward two pleas in law in support of its claims.

First, the applicant claims that the defendant failed to apply the correct legal criteria for a new active substance in violation of the legislation, in particular of Article 10(2)(b) of Directive 2001/83 (2) and annex I, part II, section III of the same directive, as well as the applicable guidance such as Notice to Applicants, in particular its volume 2A and volume 3. The applicant further submits that the approach adopted by the defendant in the contested decision regarding the condition for qualifying as new active substance infringes the object and purpose of the legislative scheme which is predicted not upon concepts of ‘added value’ or comparative efficacy, but upon absolute standards of quality, safety and efficacy.

Second, the applicant claims that the defendant infringed its essential procedural rights since the EMEA received and took account of representations made by a third party without informing the applicant of their existence or giving it an opportunity to comment.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1)

(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)
EN Official Journal of the European Union C 244/4

Action brought on 10 July 2009 — Associazione 'Giulemanidallajuve v Commission

(Case T-273/09)

2009/C 244/06

Language of the case: French

Parties

Applicant: Associazione 'Giulemanidallajuve (Cerignola, Italy) (represented by: L. Misson, G. Ernes and A. Pel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision of the Commission of the European Communities of 12 May 2009 annexed to the present application;

— urge the Commission to undertake an enquiry in order to ascertain violations by FIGC, CONI, UEFA and FIFA of Articles 81 EC and 82 EC in order to: — annul the regulations infringing Articles 81 EC and 82 EC and the sanctions imposed by FIGC, CONI and UEFA on Juventus FC S.p.A. of Turin; — urge FIGC, CONI, UEFA and FIFA to give compensation equivalent to the loss actually suffered by the Association by the fact of the infringement of Articles 81 EC and 82 EC by those undertakings and associations of undertakings; — order all appropriate penalties.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 3916 of 12 May 2009 by which the Commission rejected, as lacking legitimate interest and lacking Community interest, the applicant’s complaint concerning the alleged violations of Articles 81 EC and 82 EC committed by the Federazione Italiano Gioco Calcio (FIGC) (Italian National Soccer Federation), the Comitato Olimpico Nazionale Italiano (CONI) (Italian National Olympic Committee), the Union des associations européennes de football (UEFA) (Union of European Football Associations) and the Fédération Internationale de Football Association (FIFA) (International Federation of Association Football) in relation to disciplinary measures imposed on Juventus Football Club S.p.A of Turin (‘Juventus’).

In support of its action, the applicant raises a number of pleas in law, alleging:

— breach by the Commission of its duty to state reasons and its task of implementing and orienting competition policy, since the Commission has not taken into consideration the factual and legal elements set out in the complaint filed by the applicant, according to which the decisions taken by FIGC, CONI, UEFA and FIFA to relegate Juventus to League B of the Italian football championship and to prohibit it from taking part in the Champions League infringe Articles 81 EC and 82 EC;

— breach of Article 81 EC, since the decisions taken by FIGC, CONI, UEFA and FIFA must be regarded as decisions of associations of undertakings which were not purely sport-related decisions and which had the effect of restricting competition in the entirety of the common market, since they harm the interests of consumers of goods and services on the football market and harm the competitive structure of the common market by their effect on Juventus;
EN Official Journal of the European Union C 244/6

Action brought on 17 July 2009 — Deutsche Steinzeug Cremer & Breuer v OHIM (CHROMA)

(Case T-281/09)

2009/C 244/09

Language of the case: German

Parties

Applicant: Deutsche Steinzeug Cremer & Breuer AG (Frechen, Germany) (represented by J. Albrecht, lawyer)

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

Form of order sought

— Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Fourth Board of Appeal) of 8 May 2009, in so far as the application for registration of the mark in respect of the requested goods in Classes 19 and 11 was rejected;

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CHROMA’ for goods and services in Classes 11, 19 and 37 (Application No 6 731 103)

Decision of the Examiner: Registration rejected in part.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009, (1) in that the word ‘CHROMA’ has no directly descriptive meaning.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
Breach of essential procedural requirements, in particular, the duty to state reasons: as provided for in Article 253 of the Treaty, reasons must be given for Community measures. In accordance with the case-law, the reasoning must be express, clear, coherent and relevant. The measure may not be implied or based on tacit grounds, nor may it be clothed in obscurity. There must be no contradiction between the grounds or between the grounds and the enacting terms. The contested decisions lack any grounds whatsoever. There is also a breach of the essential procedural requirement of an indication of the legal remedies.
EN Official Journal of the European Union C 256/33

Action brought on 28 August 2009 — Bard v OHIM — Braun Melsungen (PERFIX)

(Case T-342/09)

2009/C 256/60

Language in which the application was lodged: English

Parties

Applicants: C.R. Bard, Inc. (Murray Hill, United States) (represented by: A. Bryson, Barrister, O. Bray, A. Hobson and G. Warren, Solicitors)

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

Other party to the proceedings before the Board of Appeal: B. Braun Melsungen AG (Melsungen, Germany)

Form of order sought

— Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 June 2009 in case R 1577/2007-5; 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 the Community trade mark: The applicant

Community trade mark concerned: The word mark “PERFIX”, for goods in class 10

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: German trade mark registration of the word mark “PERIFIX” for goods in class 10; International trade mark registration of the word mark “PERIFIX” for goods in class 10

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 40/94 (which became 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.
EN Official Journal of the European Union C 267/80

Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL)

(Case T-363/09)

2009/C 267/143

Language in which the application was lodged: English

Parties

Applicants: Longevity Health Products, Inc. (Nassau, The Bahamas) (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal: Gruppo Lepetit SpA (Lainate, Italy)

Form of order sought

— Admit the complaint filed by the applicant;

— Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2009 in case R 1204/2008-2 and dismiss the request for a declaration of invalidity filed by the other party to the proceedings before the Board of Appeal with regard to Community trade mark 5 244 512; and

— 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 word mark “RESVEROL”, for goods and services in classes 3, 5 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: National trade mark registrations of the mark “LESTEROL” for goods in class 5

Decision of the Opposition Division: Upheld 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.
EN Official Journal of the European Union C 267/65

Action brought on 4 August 2009 — Sanyō Denki v OHIM — Telefónica O2 Germany (eneloop)

(Case T -309/09)

2009/C 267/118

Language in which the application was lodged: German

Parties

Applicant: Sanyō Denki Kabushiki Kaisha (Osaka, Japan) (represented by: M. De Zorti, M. Koch and T. Grimm, 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: Telefónica O2 Germany GmbH & Co. OHG (Munich, Germany)

Form of order sought

— Annul the contested decision of the Second Board of Appeal of OHIM of 6 May 2009 (Case R 794/2008-2);

— Order OHIM to pay the costs of the proceedings;

— Order the intervener to pay the costs of the proceedings, including the costs incurred in the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘eneloop’ for goods in Class 9 (application No 4620225)

Proprietor of the mark or sign cited in the opposition proceedings: Telefónica O2 Germany GmbH & Co. OHG

Mark or sign cited in opposition: Inter alia, the German word mark ‘LOOP’ for goods and services in Classes 9, 38 and 42 (No 30 416 654,5)

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal dismissed

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 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).