ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 100/63

Appeal brought on 17 February 2010 by Apostolov against the Order of the European Union Civil Service Tribunal made on 15 December 2009 in case Apostolov v Commission, F-8/09

(Case T-73/10 P)

2010/C 100/93

Language of the case: English

Parties

Appellant: Svetoslav Apostolov (Saarwellingen, Germany) (represented by: D. Schneider-Addae-Mensah, lawyer)

Other party to the appeal proceedings: European Commission

Form of order sought by the appellant

— annul the Order of the European Union Civil Service Tribunal (First Chamber), dated 15 December 2009 in Case F-8/09;

— annul the decision of the European Commission contained in the letter dated 23 October 2008;

— oblige the European Commission and its specialised services, mainly the European Personnel Selection Office (EPSO), to count the answers given by the appellant to questions 9, 30 and 32 of the competency test of 14 December 2007 as correct;

— in the subsidiary, allow the appellant to pass again the competency test;

— in the subsidiary to the second, third and fourth orders sought above, remand the present case to the European Union Civil Service Tribunal; and

— order the European Commission to pay the costs of the present proceedings and of the proceedings before the European Union Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, the appellant seeks to have set aside the Order to the European Union Civil Service Tribunal (EUCST) of 15 December 2009, delivered in Case F-8/09 Apostolov v Commission, by which the EUCST dismissed as inadmissible the action by which the appellant had sought annulment of a decision of the Commission of 21 October 2008 by which the European Personnel Selection Office (EPSO) dismissed his complaint against the decision of 25 April 2008 informing him that the marks he had been given in the selection tests held in connection with the call for expression of interest EPSO/CAST27/4/07 were not sufficient for him to be included in the database of eligible candidates.

In support of his appeal, the appellant submits, principally, that there was confusion as far as the time-limit for his application was concerned and that, as a result, there was an excusable error which rendered the application filed by the appellant with the EUCST on 9 July 2009 admissible.

The appellant also submits that EPSO has committed a manifest error of appreciation of certain answers given by the appellant in the framework of the selection tests held in connection with the call for expression of interest EPSO/CAST27/4/07. The appellant further submits that EPSO had chosen a completely wrong procedure of testing candidates in order to ensure a correct selection procedure.
EN Official Journal of the European Union C 113/55

Action brought on 19 February 2010 — Lehning Entreprise v OHIM — Certmedica International (L112)

(Case T-78/10)

2010/C 113/86

Language in which the application was lodged: French

Parties

Applicant: Lehning Entreprise (Sainte-Barbe, France) (represented by: P. Demoly, lawyer)

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

Other party to the proceedings before the Board of Appeal: Certmedica International GmbH (Aschaffenburg, Germany)

Form of order sought

— In view of the similarity between the signs and the goods at issue, there is a likelihood of confusion between the marks L.114 and L112 at issue in respect of all the goods in Class 5 covered by their registrations. Consequently, the applicant claims that the Court should annul the contested decision in so far as it dismissed the application of Lehning Entreprise for a declaration of invalidity in respect of the following goods: ‘Sanitary preparations’ and ‘Dietetic foodstuffs concentrates with a shellfish base (including chitosan)’, and should uphold the remainder of the decision.

— Lastly, and having regard to the circumstances of the case, it would be particularly inequitable for the applicant to bear the non-recoverable costs which it has had to incur in these proceedings that are manifestly unjustified. It therefore claims that the Court should order Certmedica International GmbH to pay it the costs incurred in the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark ‘L112’ for goods in Classes 5 and 29 (Community trade mark No 2 349 728)

Proprietor of the Community trade mark: Certmedica International GmbH

Applicant for the declaration of invalidity: Lehning Entreprise

Trade mark right of applicant for the declaration: the national mark ‘L.114’ registered in France for goods in Class 5 (No 1 312 700)

Decision of the Cancellation Division: application granted for a declaration of invalidity of the trade mark concerned for the goods in Class 5 in part

Decision of the Board of Appeal: appeal of Certmedica International upheld in part

Pleas in law: Infringement of Articles 8, 52 and 53 of Council Regulation (EC) No 207/2009 on the Community trade mark, since there is a likelihood of confusion between the marks at issue in relation to the goods ‘Sanitary preparations’ and ‘Dietetic foodstuffs concentrates with a shellfish base (including chitosan)’
EN Official Journal of the European Union C 134/49

Action brought on 29 March 2010 — Space Beach Club v OHIM — Flores Gómez (SpS space of sound)

(Case T-144/10)

2010/C 134/79

Language in which the application was lodged: Spanish

Parties

Applicant: Space Beach Club SA (San Jorge (Ibiza), Spain) (represented by: A. Alejos Cutuli, 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: Miguel Ángel Flores Gómez (Madrid, Spain)

Form of order sought

— annul the decision of the Second Board of Appeal of OHIM and refuse registration of Community trade mark application No 5683693;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Miguel Ángel Flores Gómez

Community trade mark concerned: Figurative mark containing the verbal component ‘SpS space of sound’ (Application No 5 683 693) for goods and services in Classes 9, 35 and 41.

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

Mark or sign cited in opposition: Spanish figurative marks which contain the word element ‘SPACE’ (Nos 2 021 783, 2 610 677, 2 644 838, 2 644 839, 2 654 511, 2 694 428, 2 583 870, 3 175 742 and 4 529 814) for goods and services in Classes 9, 25 and 41.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Action dismissed.

Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 148/39

Action brought on 26 March 2010 — Hans Günter Söns v OHIM — Settimio (GREAT CHINA WALL)

(Case T-140/10)

2010/C 148/66

Language in which the application was lodged: English

Parties

Applicant: Hans Günter Söns (Wehr, Germany) (represented by: M. Schwabe, lawyer)

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

Other party to the proceedings before the Board of Appeal: Alfredo Settimio (Los Angeles, United States)

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 26 January 2010 in case R 281/2009-1;

— Order the defendant to declare invalid the registered Community trade mark subject of the application for invalidity; and

— Order the defendant to bear the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for invalidity: The word mark “GREAT CHINA WALL” for goods in classes 18, 24 and 25

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Party requesting the revocation of the Community trade mark: The applicant

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(c) and (g) of Council Regulation No 207/2009 as the Board of Appeal wrongly applied the legal provisions in question; infringement of international agreements concerning the protection of geographical indications.
EN Official Journal of the European Union C 148/42

Action brought on 25 March 2010 — Hynix Semiconductor v Commission

(Case T-149/10)

2010/C 148/70

Language of the case: English

Parties

Applicant: Hynix Semiconductor, Inc. (Icheon-si, Korea) (represented by: A. Woodgate and O. Heinisch, Solicitors)

Defendant: European Commission

Form of order sought

— annul the Commission Decision C(2010) 150 dated 15 January 2010;

— order the Commission to pay the costs;

— grant such other relief as the Court considers appropriate.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of the Commission Decision C(2010) 150 rejecting, for lack of the Community interest, the applicant’s complaint regarding alleged violations by Rambus of Articles 102 TFUE in connection with claiming of potentially abusive royalties for the use of certain patents for “Dynamic Random Access Memory” (DRAM) (Case COMP/38.636 — Rambus) following the Commission decision of 9 December 2009 by which it made binding upon Rambus certain commitments in accordance with Article 9 of the Council Regulation (EC) No 1/2003 (1) and decided that there were no longer grounds for action.

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

First, it submits that the Commission violated essential procedural requirements by not granting the applicant sufficient access to relevant documents.

Second, the applicant argues that there remains strong community interest in pursuing its complaint. It submits that the Commission based its rejection decision exclusively on the fact that there is no longer community interest given that it adopted the Article 9 decision. In the applicant’s view, in this case the position and reasoning adopted by the Commission makes the question of Community interest and the validity of the rejection decision intrinsically linked to the validity of the Article 9 decision which is contested by the applicant in Case T-148/10.

Third, fourth and fifth plea raised by the applicant are identical to the first, second and third plea that it puts forward in Case T-148/10 and concern the alleged violations committed by the Commission when adopting the Article 9 decision making binding upon Rambus certain commitments.

(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 2003 L 1, p. 1
Official Journal of the European Union

Action brought on 21 April 2010 — Zitro IP v OHIM — Show Ball Informática (BINGO SHOWALL)

(Case T-179/10)

(2010/C 161/83)

Language in which the application was lodged: Spanish

Parties

Applicant: Zitro IP Sàrl (Luxembourg) (represented by: A. Canela Giménez, 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: Show Ball Informática Ltda

Form of order sought

— Annul the decision of OHIM, and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Zitro IP.

Community trade mark concerned: Word mark ‘BINGO SHOWALL’ (application for registration No 6 059 919), for goods and services in Classes 9, 28 and 41

Proprietor of the mark or sign cited in the opposition proceedings: Show Ball Informática.

Mark or sign cited in opposition: Community figurative mark (No 5 092 275) containing the word element ‘SHOW BALL’, for goods and services in Classes 9 and 42.

Decision of the Opposition Division: Partial rejection of the application for registration.

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

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
Official Journal of the European Union

Action brought on 29 April 2010 — Avery Dennison Corp. v OHIM — Dennison Hesperia (AVERY DENNISON)

(Case T-200/10)

(2010/C 161/88)

Language in which the application was lodged: Spanish

Parties

Applicant: Avery Dennison Corp. (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, 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: Dennison Hersperia, S.A. (Torrejón de Ardoz, Spain)

Form of order sought

— annul or, in the alternative, amend the Decision of the Second Board of Appeal of OHIM of 9 February 2010 in case R 798/2009-2;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Avery Dennison Corp.

Community trade mark concerned: Word mark ‘AVERY DENNISON’ (Application No 3 825 114) for goods and services in Classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 16, 17, 19, 20, 22, 24, 28, 35, 37, 38, 39, 40, 41 and 42

Proprietor of the mark or sign cited in the opposition proceedings: Dennison Hesperia, S.A.

Mark or sign cited in opposition: Spanish trade mark ‘DENNISON’ (No 1 996 088) for goods in Class 16.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation of Articles 42(2) and (3) and, in the alternative, Article 8(1)(b) of Regulation No 207/09 on the Community trade mark.
EN Official Journal of the European Union C 179/43

Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G)

(Case T-187/10)

2010/C 179/76

Language in which the application was lodged: French

Parties

Applicant: Maurice Emram (Marseille, France) (represented by: M. Benavï, 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: Guccio Gucci SpA (Florence, Italy)

Form of order sought

— annulment of the decision of OHIM in Case R 1281/2008-1;

— reject the opposition to the filing of the trade mark G line No 2421402 of Gucci spa;

— consequently, order OHIM to pay the costs;

— order Gucci spa to pay the costs or expenses of the proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Maurice Emram.

Community trade mark concerned: Figurative trade mark “G” for goods in Classes 9, 18 and 25 — Application No 2 421 402.

Proprietor of the mark or sign cited in the opposition proceedings: Guccio Gucci SpA.

Mark or sign cited in opposition: Community and national figurate trade marks “G” for goods in Classes 9, 18 and 25.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register the mark applied for.

Pleas in law: Infringement of Articles 8 and 75 of Regulation No 40/94 (now Articles 8 and 77 of Regulation No 207/2009) inasmuch as the Board of Appeal failed to apply the legal provisions concerned correctly and carried out too brief an analysis of the evidence raised by the applicant.
EN Official Journal of the European Union C 195/31

Action brought on 25 May 2010 — Industrias Francisco Ivars v OHIM — Motive (Speed reducers)

(Case T-246/10)

2010/C 195/51

Language in which the application was lodged: Spanish

Parties

Applicant: Industrias Francisco Ivars, SL (Xeraco, Spain) (represented by: E. Caballero Oliver and A. Sanz-Bermell y Martínez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Motive S.r.l.

Form of order sought

— annul the contested decision and, accordingly, dismiss the opposition brought by MOTIVE S.r.l., and declare that the grant of Community Design No 000625702-001 for ‘reducers’ is well founded;

— 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: Community Design No 625702-0001 for Reducers in Class 15/01 (Motors)).

Proprietor of the Community trade mark: Industrias Francisco Ivars, SL

Applicant for the declaration of invalidity: Motive S.r.l.

Trade mark right of applicant for the declaration: Community Design No 73952-0001

Decision of the Cancellation Division: Dismissal of the application for a declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of invalidity of the Community design concerned.

Pleas in law: Incorrect interpretation and application of Articles 4, 5 and 7 of Regulation No 6/2002 on Community designs.
EN Official Journal of the European Union C 179/52

Action brought on 4 May 2010 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO)

(Case T-205/10)

2010/C 179/89

Language in which the application was lodged: Spanish

Parties

Applicant: Cervecería Modelo, SA de CV (represented by: C. Lema Devesa, 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: Plataforma Continental, SL (Madrid, Spain)

Form of order sought

— Annul partially the decision of 5 March 2010 (Case R/322/2009-2) of the Second Board of Appeal of the Office for Harmonisation in the Internal Market, solely to the extent that it refuses registration of the mark ‘LA VICTORIA DE MÉXICO’ for goods in Class 32 of the Classification and, consequently declare that its registration can proceed, and

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cervecería.

Community trade mark concerned: Word mark ‘LA VICTORIA DE MÉXICO’ (application for registration No 4 551 214) for goods and services in Classes 25, 32 and 43.

Proprietor of the mark or sign cited in the opposition proceedings: PLATAFORMA CONTINENTAL S.L.

Mark or sign cited in opposition: Community figurative mark containing the word element ‘VICTORIA’ (No 2 632 271) for goods in Classes 31, 32 and 33; and Spanish word mark ‘VICTORIA’ (No 1 648 564) for goods in Class 32.

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

Decision of the Board of Appeal: Partial annulment of the decision under appeal and partial refusal of the application for registration.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 195/28

Action brought on 21 May 2010 — Graf-Syteco v OHIM — Teco Electric & Machinery (SYTECO)

(Case T-229/10)

2010/C 195/45

Language in which the application was lodged: German

Parties

Applicant: Graf-Syteco Gmbh & Co. KG (Tuningen, Germany) (represented by: T. Kieser, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Teco Electric & Machinery Co. Ltd (Taipai, Taiwan)

Form of order sought

— Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1 so as to reject opposition No B 1 112 889 of 5 February 2007 based on the German figurative word mark No 30 327 439, the British and Northern Irish figurative word mark No 233 226, the Benelux figurative word mark No 742 535 and the Spanish figurative word mark No 2 545 860 TECO;

— In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1;

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘SYTECO’ for goods and services in Classes 9, 37 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Teco Electric & Machinery Co. Ltd.

Mark or sign cited in opposition: Four national figurative marks which include the element ‘TECO’, for goods in Classes 7, 9 and 11.

Decision of the Opposition Division: The opposition was upheld in part.

Decision of the Board of Appeal: The appeal was 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 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 221/56

Action brought on 18 June 2010 — Olive Line International v OHIM — O. International (O·LIVE)

(Case T-273/10)

()

2010/C 221/89

Language in which the application was lodged: English

Parties

Applicant: Olive Line International, S.L. (Madrid, Spain) (represented by: P. Koch Moreno, lawyer)

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

Other party to the proceedings before the Board of Appeal: O. International, S.r.l (Spoleto, Italy)

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 14 April 2010 in case R 4/2009-4;

— Order the defendant to bear the costs of the proceedings; and

— Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘O·LIVE’, for goods and services in classes 3 and 44 — Community trade mark application No 5715008

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

Mark or sign cited: Community trade mark registration No 5086657 of the figurative mark ‘Olive Line’, for goods in classes 3, 29 and 30; Spanish trade mark registration No 2741533 of the figurative mark ‘Olive Line’, for goods in classes 3, 29 and 30; Spanish trade mark registration No 2525564 of the word mark ‘Olive Line’, for goods in class 3

Decision of the Opposition Division: Rejected the opposition

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 assessed that there was not a likelihood of confusion between the concerned trade marks.
As regards weaknesses in the system for the control of recognition of the SAT Royal producer organisation, the Commission considers that the rule that no single member of a producer organisation may have more than 20 % of the voting rights must also apply to the natural persons who are shareholders in bodies which, in turn, are members of a producer organisation. The Kingdom of Spain considers that the rule laid down in Article 14(2) of Regulation 1432/2003 applies only to those who are members of the organisation, and there is no requirement to analyse the share structure of the bodies which make up the producer organisation.