ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 140/31

Action brought on 17 April 2007 — Siemens and VA TECH Transmission & Distribution v Commission

(Case T-122/07)

(2007/C 140/52)

Language of the case: German

Parties

Applicants: Siemens Aktiengesellschaft Österreich (Vienna, Austria) and VA TECH Transmission & Distribution GmbH & Co. KEG (Vienna, Austria) (represented by H. Wollmann and F. Urlesberger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 20 September 1998 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

— annul Article 2 of the contested decision in so far as the applicants are affected;

— in the alternative, reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 1 980 000;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicants and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.

The applicants base their application primarily on breach of Article 81(1) EC and Article 23 of Regulation (EC) No 1/2003 (1). In this connection they complain that the fine imposed on VA TECH Transmission & Distribution GmbH & Co. KEG is disproportionately high in relation to the fines imposed on other undertakings. Furthermore, the way in which the Commission attempted to divide a total amount of fines up among various companies breached the ne bis in idem principle. In addition, the applicants assert that the Commission incorrectly assessed the duration of the infringement. Further, the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community. Finally, it is submitted in connection with the first plea in law that when the fines were assessed mitigating circumstances and the leniency notice were wrongly left out of account.

Second, the applicants submit that the Commission breached essential procedural requirements. In this connection they complain of a breach of the right to be heard.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).
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Annul the Call for expressions of interest to constitute a database of candidates to be recruited as contracts agents carrying out various activities within the European institutions and agencies, EPSO/CAST/EU/27/07, published only in English, French and German on the EPSO website http://europe.eu.epso/cast27/call on 27 March 2007.
EN Official Journal of the European Union C 283/33

Action brought on 17 September 2007 — Traxdata France v OHIM — Ritrax (TRAXDATA, TEAM TRAXDATA)

(Case T-365/07)

(2007/C 283/61)

Language in which the application was lodged: English

Parties

Applicant: Traxdata France SARL (Paris, France) (represented by: F. Valentin, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ritrax Corp. Ltd (London, United Kingdom)

Form of order sought

— Reverse the decision of 23 May 2007 handed down by the First Board of Appeal of the Office for Harmonisation in the Internal Market in joined cases R 1337/2005-1, R 1338/2005-1, R 1339/2005-1 and R 1340/2005-1 and to accordingly declare the invalidity of TRAXDATA CTMs No 000007393, No 000877779, No 001252725 and TEAM TRAXDATA No 000877910 for all of the products and services listed in classes 9, 16 and 42, on the basis of Article 52(1)(c) of the CTMR of 20 December 1993;

— pronounce the invalidity of TEAM TRAXDATA CTM No 000877910, for the following services listed in class 36: ‘Financial sponsorship of sports and leisure activities; financial sponsorship of sporting competitions, events and teams; financial sponsorship of sportsmen and sportswomen […] advice and consultancy services in relation to all the aforesaid services’;

— pronounce the invalidity of TRAXDATA CTMs No 000877779 and TEAM TRAXDATA No 000877910, for the following services listed in class 41: ‘entertainment and education services; arranging and conducting of conferences, congresses, seminars, symposiums, […] electronic game services provided by means of the Internet; publishing of books, magazines and periodicals; […] amusement centre services; […] rental of video cassettes, audio cassettes, compact discs and cine films; advice and consultancy services relating to all the aforesaid services.’

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word and figurative marks ‘TRAXDATA’ and ‘TEAM TRAXDATA’ for goods and services in classes 9, 16, 36, 41 and 42 — Community trade marks No 877 910, 877 779, 7 393 and 1 252 725

Proprietor of the Community trade mark: Ritrax Corp. Ltd

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

Trade mark right of the party requesting the declaration of invalidity: The unregistered corporate name ‘TRAXDATA FRANCE SARL’ and trade name ‘TRAXDATA’ for the following goods and services: ‘consultancy, delivery and sale of computer consumables, hardware and accessories’

Decision of the Cancellation Division: Rejection of the applicant's requests for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal infringed Article 52(1)(c) read in conjunction with Article 8(4) of Council Regulation No 40/94 by finding that the applicant had not furnished proof that it continues to make use of ‘TRAXDATA’ and by improper application of the criteria of likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 247/39

Action brought on 29 August 2007 — Patrick Holding v OHIM — Cassera (PATRICK EXCLUSIVE)

(Case T-327/07)

(2007/C 247/64)

Language in which the application was lodged: English

Parties

Applicant: Patrick Holding ApS (Fredensborg, Denmark) (represented by: J. Løje, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cassera SpA (Milan, Italy)

Form of order sought

— The decision taken by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 28 June 2007 in Case No R 727/2006-2 be annulled and the defendant be ordered to register the contested trade mark;

— the defendant pays the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘PATRICK EXCLUSIVE’ for goods in class 25 — application No 3 063 427

Proprietor of the mark or sign cited in the opposition proceedings: Cassera SpA

Mark or sign cited: Community, national and international figurative marks and word marks ‘G. PATRICK’ for goods in classes 24 and 25

Decision of the Opposition Division: Opposition upheld in its entirety

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 there is no likelihood of confusion between the conflicting trade marks.
EN Official Journal of the European Union C 8/23

Action brought on 16 November 2007 — Jurado Hermanos, S.L. v OHIM (JURADO)

(Case T-410/07)

(2008/C 8/42)

Language of the case: Spanish

Parties

Applicant: Jurado Hermanos, S.L. (Alicante, Spain) (represented by C. Martín Álvarez, 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 3 September 2007 in Case R 866/2007-2;

— Give judgment on the merits of the case, recognising JURADO HERMANOS, S.L., as an interested party in the renewal procedure for Community trade mark No 240.218, JURADO HERMANOS, S.L. being the exclusive and registered licensee of that mark, and acceding to the application for restitutio in integrum filed by JURADO HERMANOS, S.L. in relation to the renewal of the Community trade mark No 240.218, and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: word mark ‘JURADO’ (Application No 240.218).

Goods or Services: goods in Class 30.

Proprietor of the trade mark which is the subject of the application: CAFETAL DE COSTA RICA S.A.

Decision of the Examiner: dismissal by the Administration of Trade Marks and Legal Division of the application for restitutio in integrum brought by the applicant, the licensee of the trade mark in question, as a result of the cancellation of the registration of that trade mark, owing to the failure of the proprietor to seek the appropriate renewal.

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

Pleas in law: infringement of the right to a fair hearing and an incorrect interpretation, in the present case, of Articles 47 and 78(1) of Regulation (EC) No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 8/26

Action brought on 21 November 2007 — RedEnvelope v OHIM — Red Letter Days (REDENVELOPE)

(Case T-416/07)

(2008/C 8/46)

Language of the case: English

Parties

Applicant: RedEnvelope Inc. (San Francisco, United States) (represented by: A. Poulter, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Red Letter Days Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal dated 14 September 2007, No R 765/2005-1, in so far as the decision provided for the admission of new evidence in support of the grounds of opposition;

— order that the defendant pays the applicant's costs of this appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘REDENVELOPE’ for services in classes 35 and 42 — application No 1 601 392

Proprietor of the mark or sign cited in the opposition proceedings: Red Letter Days Ltd

Mark or sign cited: The registered and non-registered national word and figurative marks ‘RED LETTER’, ‘RED LETTER DAYS’ and ‘RED LETTER DAYS PLC’ for goods and services in classes 9, 14, 16, 18, 21, 22, 25, 26, 33, 36, 39, 41, 42, 43 and 44

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and remittal of the case to the Opposition Division for further consideration in so far as it regards Article 8(4) of Council Regulation No 40/94

Pleas in law: Violation of Article 74(2) of Council Regulation No 40/94, as the Board of Appeal admitted new evidence, which will allow the Opposition Division to make a decision based on evidence, which was not available earlier in the proceedings and to which the applicant has not had an opportunity to respond before the Opposition Division.
EN Official Journal of the European Union C 37/33

Action brought on 11 December 2007 — Dylog Italia/OHIM — GSI Office Management (IP Manager)

(Case T-453/07)

(2008/C 37/52)

Language in which the application was lodged: English

Parties

Applicant: Dylog Italia SpA (Turin, Italy) (represented by: A. Ruo, lawyer)

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

Other party to the proceedings before the Board of Appeal: GSI Office Management GmbH (Planegg, Germany)

Form of order sought

— Annulment of the decision of 27 September 2007, of the First Board of Appeal R982/2005-4, in so far as the Board established that there was no likelihood of confusion in respect of all the services for which registration is sought in classes 35, 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark; and subsidiarily

— annulment of the contested decision in so far as the Board established that there was no likelihood of confusion in respect of all the services in class 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark;

— the Office for the Harmonisation in the Internal market (OHIM) be ordered to pay the applicant's costs in accordance with Article 87(2) of the rules of procedure of the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: GSI Office Management GmbH

Community trade mark concerned: The Community word mark ‘IP MANAGER’ for services in classes 35, 36, 38, 41 and 42 — application No 2 177 277

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

Mark or sign cited: The earlier national and international word marks ‘MANAGER’ for goods in classes 9, 16, 35, 37, 39, 41 and 42 and the national word mark ‘HOTEL MANAGER’ for goods and services in classes 9 and 42

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 of Council Regulation (EC) No 40/94.
EN Official Journal of the European Union C 22/47

Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (300)

(Case T-426/07)

(2008/C 22/88)

Language of the case: Polish

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by D. Rzążewska, legal adviser)

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1275/2006-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘300’ for goods and services in Classes 16, 28 and 41 (Application No 3 875 416).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1) since, in the applicant's submission, the sign ‘300’ is neither descriptive nor devoid of distinctive character in relation to the goods and services indicated.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 51/58

Action brought on 21 December 2007 — Imperial Chemical Industries v OHIM (FACTORY FINISH)

(Case T-487/07)

(2008/C 51/106)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries (ICI) plc (London, United Kingdom) (represented by: S. Malynicz, Barrister)

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

Form of order sought

— The decision of the Fourth Board of Appeal dated 24 October 2007 in Case R 668/2007-4 shall be annulled.

— The Office shall bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘FACTORY FINISH’ for goods in class 2 — application No 4 538 518

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(c) of Council Regulation No 40/94, as ‘FACTORY FINISH’ is not descriptive, but an unusual juxtaposition of words resulting in a lexical invention, and violation of Article 7(1)(b) of Council Regulation No 40/94, as the mark applied for is not devoid of distinctive character.
EN Official Journal of the European Union C 37/31

Action brought on 3 December 2007 — Rotter v OHIM (EU-BRUZZEL)

(Case T-449/07)

(2008/C 37/49)

Language in which the application was lodged: German

Parties

Applicant: Thomas Rotter (Munich, Germany) (represented by M. Müller, lawyer)

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

Form of order sought

— To annul the decision of the Fourth Board of Appeal of OHIM of 27 September 2007 in Case R 1415/2006-4;

— To order OHIM to pay the costs of the proceedings including those incurred during the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark ‘EU-BRUZZEL’ for goods and services in Classes 29, 30 and 43 (application No 4 346 185).

Decision of the Examiner: rejection in part of the application.

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

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), since the mark applied for is distinctive in relation to the contested charcuterie goods.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
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annul Memorandum No 011140 of 18 October 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref: DOCUP Toscana Ob. 2 (No CCI 2000 IT 16 2DO 001);
EN Official Journal of the European Union C 51/46

Action brought on 14 December 2007 — Centre d'Etude et de Valorisation des Algues v Commission of the European Communities

(Case T-455/07)

(2008/C 51/86)

Language of the case: French

Parties

Applicant: Centre d'Etude et de Valorisation des Algues (CEVA) (Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Principally, declare that the procedure is irregular and that there has been an infringement of the right to be heard and, therefore, annul the Commission's debit note No 3240909271, dated 4 October 2007, and order the Commission to reimburse that note to CEVA;

— In the alternative, declare that the errors noted in the RAIA audit report are not so serious that Article 3.5 of Annex II to the contract may be applied to them, annul the Commission's debit note No 3240909271, dated 4 October 2007, to the extent that it seeks full reimbursement of the amounts paid to CEVA under the BIOPAL contract and order the Commission to reimburse that note to CEVA;

— In the very much further alternative, appoint an expert of the Court's choice whose mission will be: to take CEVA's method of calculation; apply that method to the BIOPAL contract and to the reality of the costs in the expenditure accounts; express as a percentage the difference between the amount of the errors in the recording of working time as submitted to the Commission and the amount of that working time as recorded under the method of calculation now applicable to CEVA; carry out an assessment of the direct working time necessary to carry out CEVA's missions in the framework of the BIOPAL contract; state whether that real working time, needed to carry out those missions, could be less than the 5 796,67 direct hours calculated by CEVA.

Pleas in law and main arguments

In the present action, the applicant is seeking the annulment of the debit note whereby the Commission demanded reimbursement of all the payments on account made to the applicant in the framework of BIOPAL contract No QLK5-CT-2002-02431, concerning the key action ‘Sustainable Agriculture, Fisheries and Forestry, and Integrated Development of Rural Areas including Mountain Areas’, which is part of the ‘Quality of Life and management of living resources’ (1)

In support of its application, the applicant puts forward a plea in law alleging an infringement of the rights of the defence inasmuch as the Commission, contrary to the principle of the right to be heard, based the demand for reimbursement on time sheets and conclusions drawn by OLAF of which the applicant had no knowledge.

In the alternative, the applicant contests the Commission's application of Article 26 of Annex II to the contract and its finding that the facts of the case were sufficiently serious to invoke the concept of serious financial irregularity justifying a full reimbursement of the payments on account.

(1) Fifth European Community Framework Programme covering Research, Technological Development and Demonstration activities 1998-2002.
—

order the defendant to pay to the Commission the sum of EUR 25 574 in capital, together with the sum of EUR 10 189,31 by way of default interest until 31 December 2007, and, from 1 January 2008 onwards until all sums have been paid, to pay EUR 3,67 for each day of delay, with this interest to be capitalised from 31 May 2001 onwards;
EN Official Journal of the European Union C 64/55

Action brought on 4 January 2008 — Nestlé v OHIM — Master Beverage Industries (Golden Eagle)

(Case T-5/08)

(2008/C 64/88)

Language in which the application was lodged: English

Parties

Applicant: Société des Produits Nestlé SA (Vevey, Switzerland) (represented by: A. von Mühlendahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: Master Beverage Industries Pte Ltd (Singapore, Singapore)

Form of order sought

— Annul the decision of the defendant's Second Board of Appeal of 1 October 2007, Case R 563/2006-2 (CTM 3 157 005);

— decide that the contested CTM application No 3 157 005 RED MUG device with ‘Golden Eagle’ and eagle design must be rejected;

— order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal;

— order Master Beverage, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings; including those incurred by the applicant before the Board of Appeal, in case it should become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: Master Beverage Industries Pte Ltd

Community trade mark concerned: The figurative mark ‘Golden Eagle’ for goods in class 30 — application No 3 157 005

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

Mark or sign cited: The Community, international and national figurative marks and word marks ‘Red Cup’, ‘Gold Blend’ and representations of a cup for, inter alia, coffee

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and 8(5) of Council Regulation No 40/94, as the conflicting trade marks have a high degree of visual similarity because of an identical arrangement of nine elements present in both the trade mark applied for and in most of the earlier marks, which are inherently distinctive.