ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 220/37

Action brought on 10 July 2009 — Pineapple Trademarks v OHIM — Dalmau Salmons (KUSTOM)

(Case T-272/09)

2009/C 220/79

Language in which the application was lodged: English

Parties

Applicants: Pineapple Trademarks Pty Ltd (Burleigh Heads, Australia) (represented by: N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal: Angel Custodio Dalmau Salmons (Barcelona, Spain)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2009 in case R 383/2008-1 and remit the application for the Community trade mark to OHIM in order to allow it to proceed; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘KUSTOM’, for goods in classes 18, 25 and 28

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 word mark ‘CUSTO’ for goods in classes 18 and 25

Decision of the Opposition Division: Upheld the opposition 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 207/2009 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned; Infringement of the rights of defence of the applicant as the Board of Appeal made findings in relation to the aural and conceptual similarity of the trade marks concerned on which the applicant was not given the opportunity to comment and which were unsupported by relevant evidence.
EN Official Journal of the European Union C 220/35

Appeal brought on 6 July 2009 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment of the Civil Service Tribunal delivered on 5 May 2009 in Case F-27/08, Simões Dos Santos v OHIM

(Case T-260/09 P)

2009/C 220/74

Language of the case: French

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by I. de Medrano Caballero, Agent, and D. Waelbroeck, lawyer)

Other party to the proceedings: Manuel Simões Dos Santos (Madrid, Spain)

Form of order sought by the appellant

The appellant claims that the Court of First Instance should:

— set aside the judgment of the Civil Service Tribunal in Case F-27/08, including the ruling as to costs;

— uphold the form of order contended for by OHIM at first instance, that is to say, dismiss the action as unfounded;

— order the respondent to pay the costs of the present proceedings, together with those incurred in the proceedings before the Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, OHIM is seeking to have set aside the judgment of 5 May 2009 in Case F-27/08 Simões Dos Santos v OHIM, by which the Civil Service Tribunal annulled Decision PERS-01-07 and OHIM’s letter of 7 June 2007 in so far as they entail the elimination of the balance of the merit points held by Manuel Simões Dos Santos following his promotion.

In support of its appeal, OHIM relies on three pleas in law:

— error of law in that, contrary to the case-law concerning the conditions relating to the retroactive application of an act and in breach of the principle of the protection of legitimate expectations, the Civil Service Tribunal held that OHIM was in breach of the principles of legal certainty and non-retroactivity;

— error of law, in that the Civil Service Tribunal held that OHIM had infringed Article 233 EC and disregarded the authority of res iudicata of the judgment in Case T-435/04 Simões Dos Santos v OHIM, whereas in fact the measures taken by OHIM for the purposes of complying with that judgment are the only measures permissible if the principle of non-discrimination is not to be infringed;
EN Official Journal of the European Union C 244/12

Action brought on 30 July 2009 — Val’hor v Commission

(Case T-306/09)

2009/C 244/20

Language of the case: French

Parties

Applicant: Val’hor (Paris, France) (represented by: V. Ledoux and B. Néouze, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2008) 7846 final (1) of 10 December 2008 in which the Commission found that the umbrella scheme likely to be run by the inter-branch organisations of French farmers (organisations interprofessionnelles agricoles françaises), consisting in aids for technical assistance; for the production and marketing of high-quality agricultural products; for research and development, and for advertising which promotes primary producers and undertakings active in the processing and marketing of agricultural products, financed by voluntary levies made compulsory by ministerial decree, levied on members of those inter-branch organisations, constitutes State aid which is compatible with the common market.

The pleas and principal submissions relied upon the by the applicant are substantially the same as, or similar to, those put forward in the context of Cases T-293/09 CNIEL v Commission, and T-302/09 CNIPT v Commission.

(1) OJ 2009 C 116, p. 14.
EN Official Journal of the European Union C 256/32

Action brought on 25 August 2009 — Häfele v OHIM — Topcom Europe (Topcom)

(Case T-336/09)

2009/C 256/57

Language in which the application was lodged: English

Parties

Applicants: Häfele GmbH & Co. KG (Nagold, Germany) (represented by: J. Dönch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Topcom Europe NV (Heverlee, Belgium)

Form of order sought

— Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 June 2009 in case R 1500/2008-2; 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 “Topcom”, for goods in classes 7, 9 and 11

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 word mark “TOPCOM” for goods in class 9; Benelux trade mark registration of the word mark “TOPCOM” for goods in class 9.

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal, allowed the opposition and annulled the decision of the Opposition Division

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, due to the fact that the goods in question are not similar nor complementary.
EN Official Journal of the European Union C 244/5

Action brought on 16 July 2009 — Trasys v Commission

(Case T-277/09)

2009/C 244/08

Language of the case: English

Parties

Applicant: Trasys (Woluwe-Saint-Lambert, Belgium) (represented by: M. Martens and P. Hermant, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision, notified to the applicant by a letter dated 9 June 2009, rejecting the applicant’s tender for Lots C and E in the call for tender No 10017 and awarding contract to the successful contractors;

— Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant’s decisions to reject its bid submitted for Lots C and E in response to a call for an open tender for support of the Publications Office and its CORDIS unit in the provision of publishing and communication services (1) and to award the contract to the successful contractor.

In support of its claims the applicant puts forward four pleas in law.

First, the applicant contends that the defendant infringed the principle of transparency laid down in Articles 100 and 89(1) of the financial regulation (2) by unreasonably limiting access to essential information and in consequence depriving the applicant of the opportunity to gain a proper understanding of the method used to evaluate the tenders and of the reasons why its tender was rejected.

Second, the applicant alleges that its bid has been subject to a tender assessment methodology which is contrary to the principles set out in Article 89(1) of the financial regulation such as the principles of equal treatment and transparency.

Third, it claims that the tender specifications were not clear enough and that the last clarifications were provided too late by the contracting authority and, as a consequence, the applicant was not in the position to plan its tender and to take into account the way in which the assessment would be made.

Fourth, the applicant submits that its bid has been subject to an unreasonable and disproportional evaluation by the contracting authority leading to the errors of assessment which vitiate the final decision.

(1) JO 2008/S 242-321376

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)
EN Official Journal of the European Union C 267/75

Action brought on 1 September 2009 — Amecke Fruchtsaft v OHIM — Beate Uhse (69 Sex up)

(Case T-343/09)

2009/C 267/134

Language in which the application was lodged: German

Parties

Applicant: Amecke Fruchtsaft GmbH & Co. KG (Menden, Germany) (represented by: R. Kaase and J.-C. Plate)

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

Other party to the proceedings before the Board of Appeal of OHIM: Beate Uhse Einzelhandels GmbH

Form of order sought

— Declare admissible the action brought against the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 1728/2008-1;

— Annul the contested decision on the ground of infringement of Article 8(1)(b) of Regulation (EC) No 207/2009; (1)

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

Pleas in law and main arguments

Applicant for a Community trade mark: Beate Uhse Einzelhandels GmbH.

Community trade mark concerned: the word mark “69 Sex up” for goods and services in Classes 32 and 41 (Application No 5 274 303).

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

Mark or sign cited in opposition: German word mark “sex:h:up” for goods in classes 5, 29, 30 and 32 (No 30 531 669), although the opposition was directed solely against the registration for goods in class 32.

Decision of the Opposition Division: allow the opposition

Decision of the Board of Appeal: annulment of the contested decision and dismissal of the opposition.

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009 in that there is a likelihood of confusion between the two 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 267/79

Action brought on 16 September 2009 — Sociedad Agricola Requingua v OHIM — Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA)

(Case T-358/09)

2009/C 267/141

Language in which the application was lodged: English

Parties

Applicants: Sociedad Agricola Requingua Ltda (Santiago, Chile) (represented by: E. Vorbuchner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Consejo Regulador de la Denominación de Origen Toro (Toro, Spain)

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 18 June 2009 in case R 1117/2008-2;

— Order the defendant to bear all the costs, i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings; and

— Order the other party to the proceedings before the Board of Appeal to pay its own costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “TORO DE PIEDRA”, for goods in class 33

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 “D. ORIGEN TORO” for goods in class 33; Spanish trade mark registration of the figurative mark “Denominación de Origen TORO” for goods in class 33

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; infringement of Article 75(2) of Council Regulation 207/2009 and the right to be heard as the Board of Appeal failed to hear the latest submission of the applicant; infringement of the obligation to state reasons according to Article 75(1) of Council Regulation 207/2009, as the Board of Appeal failed to reason why it abstained from taking the latest submission of the applicant into account.
EN Official Journal of the European Union C 282/53

Action brought on 17 September 2009 — Insula v Commission

(Case T-366/09)

2009/C 282/100

Language of the case: French

Parties

Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the action admissible and well-founded;

— declare that the Commission’s demand for reimbursement of the sum of EUR 114 996,82 is unfounded and, consequently, order the Commission to issue a credit note in the sum of EUR 114 996,82;

— declare that the Commission’s demand for reimbursement of the sum of EUR 253 617,08 is well-founded in part and, consequently, order the Commission to issue a credit note in the sum of EUR 174 044,85;

— order the Commission to pay damages of EUR 146 261,06;

— in the alternative, declare that the applicant is entitled to compensation in the sum of EUR 573 273,42;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, based on an arbitration clause, the applicant requests the Court to declare that the debit notes by which the Commission demands, following a report from OLAF, recovery of advances paid to the applicant do not comply with the clauses of the various contracts concluded in respect of projects under the specific programme for research, technological development and demonstration on energy, environment and sustainable development and under the ALTENER II programme.

The pleas and main arguments raised by the applicant are essentially identical to those raised in Case T-246/09 Insula v Commission. (1)

(1) OJ 2009 C 193, p. 30.
EN Official Journal of the European Union C 267/82

Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria

(Case T-367/09)

2009/C 267/145

Language of the case: Italian

Parties

Applicant: Tecnoprocess (Rome, Italy) (represented by A. Majoli, lawyer)

Defendant: Commission of the European Communities and Delegation of the European Commission to the Republic of Nigeria

Form of order sought

— a declaration pursuant to Article 232 EC that the EU Delegation to Abuya and the Commission of the European Communities have failed to act;

— a declaration, on the basis of Article 288 of the Treaty, that the Delegation and the Commission have incurred non-contractual liability vis-à-vis the applicant and an order that they should jointly and severally pay it compensation for damage in the sum of EUR 600 000 (six hundred thousand euro).

Pleas in law and main arguments

The company which is the applicant in these proceedings is the same as in Case T-264/09 Tecnoprocess v Commission of the European Communities and European Commission Delegation to Morocco. (1)

The subject-matter of the dispute is the conditions surrounding the performance of the contract ‘EuropeAid 123511/D/SUP/NG — Supply, Installation, Delivery, Commissioning and After-Sale Service of 114 27 Kva Generators to the EC Assisted Prime Project in Nigeria’, designed to ensure the supply and installation of 114 27 KVA generators, and the performance of after-sales service assistance, for the National Authorising Officer, National Planning Commission and, especially for the offices of that body situated in six of the main geographic areas of Nigeria.

The applicant claims that the Commission has not shown due care and attention in monitoring the conditions in which the contract at issue was carried out, failing to find a satisfactory solution for its interests faced with the serious breaches of obligations to be found in its performance.

In support of its heads of claim, the applicant puts forward pleas in law and main arguments similar to those pleaded in Case T-264/09, cited above.

(1) OJ 2009 C 220, p. 16.
EN Official Journal of the European Union C 297/22

Action brought on 22 September 2009 — Sociedade Quinta do Portal SA v OHIM — Vallegre–Vinhos do Porto (PORTO ALEGRE)

(Case T-369/09)

2009/C 297/32

Language in which the application was lodged: Portuguese

Parties

Applicant: Sociedade Quinta do Portal SA (Lisbon, Portugal) (represented by: B. Belchior, lawyer)

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

Other party to the proceedings before the Board of Appeal: Vallegre–Vinhos do Porto SA (Sabrosa, Portugal)

Form of order sought

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in Case R 1012/2008–1, dismissing the appeal brought by the applicant against the decision of the Cancellation Division which declared the Community word mark PORTO ALEGRE invalid; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark PORTO ALEGRE, for goods in Class 33

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity: the other party to the proceedings before the Board of Appeal

Trade mark right of applicant for the declaration: earlier Portuguese word mark VISTA ALEGRE, for goods in Class 33

Decision of the Cancellation Division: Community word mark PORTO ALEGRE declared invalid

Decision of the Board of Appeal: appeal dismissed

Plea in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 in so far as the Board of Appeal misinterpreted that provision and, consequently, wrongly held that there was a likelihood of confusion between the marks in question.
EN Official Journal of the European Union C 312/38

Action brought on 22 October 2009 — Dashiqiao Sanqiang Refractory Materials v Council

(Case T-423/09)

2009/C 312/62

Language of the case: French

Parties

Applicant: Dashiqiao Sanqiang Refractory Materials Co. Ltd (Dashiqiao City, China) (represented by: J.-F. Bellis and R. Luff, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul the anti-dumping duty imposed with respect to the applicant by Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China (OJ 2009 L 240, p. 7), in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of the basic regulation, that Chinese export VAT was not refunded;

— order the Council to pay the costs.

Pleas in law and main arguments

By this action, the applicant, a company established in China, seeks the annulment of Council Regulation (EC) No 826/2009 of 7 September 2009 amending Regulation (EC) No 1659/2005 imposing a definitive anti-dumping duty on imports of certain magnesia bricks originating in the People’s Republic of China, (1) in so far as the anti-dumping duty that it sets exceeds that which would be applicable if that duty had been determined on the basis of the method applied in the original investigation in order to take account of the fact, in accordance with Article 2(10) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (2) (basic regulation), that Chinese export VAT was not refunded.

The applicant puts forward two pleas in support of its action.

First, the applicant submits that the method used by the Commission in the review which gave rise to the contested regulation to deal with the fact that export VAT was not refunded infringes the principle of fair comparison between the export price and the normal value laid down by Article 2(10) of the basic regulation. Instead of deducting from the export price the non-refunded amount of export VAT, as it had done in the original investigation, the Commission, relying on an incorrect interpretation of Article 2(10)(b) of the basic regulation, compared the export price with the normal value on a VAT-inclusive basis.

Second, the applicant submits that the Regulation is also vitiated by an infringement of Article 11(9) of the basic regulation since the method applied to take account of the fact that VAT was not refunded in the comparison between the export price and the normal value differs radically from that applied in the original investigation without any valid justification.

(1) OJ 2009 L 240, p. 7.

(2) OJ 1996 L 56, p. 1.