ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 141/23

Action brought on 2 March 2013 — Evonik Oil Additives v OHIM — BRB International (VISCOTECH)

(Case T-138/13)

2013/C 141/42

Language in which the application was lodged: German

Parties

Applicant: Evonik Oil Additives GmbH (Darmstadt, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal: BRB International BV (Ittervoort, Netherlands)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 December 2012 in Case R 907/2012-5;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: BRB International BV

Community trade mark concerned: the word mark ‘VISCOTECH’ for goods in Classes 1 and 4

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

Mark or sign cited in opposition: the national and international word marks ‘VISCOPLEX’ for goods in Classes 1 and 4

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was upheld and the opposition was rejected

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 129/23

Action brought on 23 February 2013 — Republic of Lithuania v European Commission

(Case T-110/13)

2013/C 129/47

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, R. Krasuckaitė and D. Skara)

Defendant: European Commission

Form of order sought

— annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to that decision relates to projects in respect of which the implementing parties have been placed in receivership, and order the Commission to return the amount of EUR 3 148 549,66;

— annul Decision No FK/fa/D(2012) 1707818 of the European Commission of 10 December 2012 in so far as the debit note No 3241213460 attached to it relates to Project No P27010010, and order the Commission to return the amount of EUR 1 060 560,56;

— order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law, each relating to a breach of European Union law:

1. The European Commission, in adopting the contested decision and not having shared the losses on the administration of the SAPARD funds with the Republic of Lithuania, or in any event by not having considered that matter and by not having provided any reasons for the refusal to share the losses, breached Article 8(2) of Regulation No 1258/1999, (1) read in conjunction with Article 73(2) of Regulation No 1605/2002, (2) Article 87 of Regulation No 2342/2002 (3) and the principle of sincere cooperation set out in Article 4(3) TEU.

2. The European Commission, having failed to provide, in sufficient time, information as to the possibility of cancelling the debt and striking the corresponding company off the list of debtors, breached the provision on mutual consultation contained in point 7.7.4 of Part F of the multiannual financing agreement concerning the special aid programme for agriculture and rural development (SAPARD) (4) signed in 2001 by the Republic of Lithuania and the European Commission, read in conjunction with the principle of sincere cooperation set out in Article 4(3) TEU.

(1) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160 of 26.6.1999, p. 103).

(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 of 16.9.2002, p. 1; corrigendum at OJ 2007 L 99 of 14.4.2007, p. 18).

(3) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357 of 31.12.2002, p. 1; corrigendum at OJ 2005 L 345 of 28.12.2005, p. 35).

(4) Valstybės žinios, 29.8.2001, No 74-2589.
EN Official Journal of the European Union C 79/29

Action brought on 21 January 2013 — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE)

(Case T-36/13)

2013/C 79/50

Language in which the application was lodged: Italian

Parties

Applicant: Erreà Sport SpA (Torrile, Italy) (represented by: D. Caneva and G. Fucci, lawyers)

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

Other party to the proceedings before the Board of Appeal: Antonio Facchinelli (Dalang, China)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 October 2012 in Case R 1561/2011-1 and, consequently, reject the application for registration published in Community Trade Marks Bulletin No 117/2010, lodged by Antonio Facchinelli, in respect of all the goods;

— order that the costs incurred by Erreà Sport S.p.A in the present proceedings be reimbursed.

Pleas in law and main arguments

Applicant for a Community trade mark: Antonio Facchinelli

Community trade mark concerned: Figurative mark containing the word elements ‘ANTONIO BACIONE’, for goods in Classes 3, 14, 18 and 25 — Community trade mark application No 9 056 037

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

Mark or sign cited in opposition: Figurative mark containing the word element ‘erreà’ and figurative mark containing two intersecting rhombuses, for goods in Classes 3, 9, 14, 16, 18, 25, 28, 35 and 41

Decision of the Opposition Division: Opposition rejected

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

— Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 147/22

Action brought on 11 March 2013 — Ziegler Relocation v Commission

(Case T-150/13)

2013/C 147/40

Language of the case: French

Parties

Applicant: Ziegler Relocation SA (Brussels, Belgium) (represented by: J.-F. Bellis, M. Favart and A. Bailleux, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— join the present action to Case T-539/12;

— declare the present action admissible and well-founded;

— hold that the European Union has incurred non-contractual liability as regards the applicant;

— order the European Union to pay the applicant the sum of EUR 112 872,50 per year from 11 March 2008, together with interest until payment in full;

— order the European Union to pay the costs.

Pleas in law and main arguments

The damage in respect of which the applicant seeks compensation from the European Union concerns the loss of earnings which it claims to have suffered since the adoption of the Commission’s decision of 11 March 2008 in Case COMP/38.543 — International removal services as a result of the practice of European Union officials to request cover quotes in the context of removals the costs of which are reimbursed in accordance with the status of European Union officials has not ceased. The applicant’s refusal to respond favourably to such requests has the effect of removing it from the markets concerned, to the extent that it no longer supplies removal services to more than a very limited number of officials of the European institutions. It is a failure on the part of the European Union to fulfil its duty of care which is the cause of the loss thus suffered by the applicant.
—

It is claimed in this regard that Article 2(1) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, establishes the precautionary approach as the guiding approach for the adoption of measures for the conservation and sustainable exploitation of fisheries resources; and that the same principle governs Article 6 of the ‘Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks’ (New York, 1995; OJ 1998 L 189, p. 14), to which the EU, and its then Member States, acceded on 19.12.2003, and which entered into force on 18.1.2004. The applicants claim that the management of the stock of blue whiting in the north-east Atlantic under the contested regulation, by failing to distinguish between the northern and southern components of stock, imposes such a drastic and indiscriminate catch-reduction in the southern component as to generate a ‘risk’ that would have required the application of the precautionary approach.
1.

Infringement of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (2) Here the applicant submits in essence that the Commission refused full access to the requested documents (written correspondence between the Republic of Austria and the Commission in connection with complaint No 2008/4340 of alleged non-compliance of the Austrian Law on tobacco with Directive 2001/37) largely on the basis of the arguments of the Austrian authorities, without examining the content of those arguments. The applicant takes the view however that it was not access to the documents but the refusal of access which had negative effects on the action seeking to establish State liability which it brought before the Austrian Constitutional Court. It adds that the purpose of the exception in the second indent of Article 4(2) of Regulation No 1049/2001 was rather to require access to the documents at issue to be granted.
1.

First plea in law, alleging violation of the rights of defence, dénaturation of the file, violation of the principle of proportionality, violation of Article 20 of Regulation (EC) No 45/2001 (1) and violation of the right to an effective legal remedy. In this respect, the appellant states that the EU Civil Service Tribunal (‘CST’) erred in law and infringed her rights of defence by considering that she may not rely on the ECB’s obligation to observe the rights of the defence. Indeed, the decision rejecting her request for assistance significantly affected the appellant’s interests and, in addition, the procedure was ‘initiated’ against the appellant in the meaning specified by the case law (Commission v Lisrestal). Given the failure to allow the appellant to take cognizance of the file, the appellant was also unable to defend her rights with regard to the file in satisfactory conditions before the European judicature, with the result that her right to an effective legal remedy has also been infringed.
EN Official Journal of the European Union C 156/54

Action brought on 9 April 2013 — Telefónica v Commission

(Case T-216/13)

2013/C 156/100

Language of the case: Spanish

Parties

Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Folguera Crespo, P. Vidal Martínez and E. Peinado Iríbar, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul Articles 1 and 2 of the decision of the Commission of 23 January 2013 in so far as they concern the applicant, or, in the alternative

— declare Article 2 of the contested decision partially null and void and reduce the amount of the fine imposed, and

— order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision in the present proceedings is the same as that in Case T-208/13 Portugal Telecom v Commission.

In support of the action, the applicant relies on five main pleas in law.

1. First plea in law, alleging infringement of Article 101 TFEU — It is claimed in this regard that the contested decision incorrectly applies the case-law relating to restrictions by object and infringes the principles of the presumption of innocence, burden of proof and ‘in dubio pro reo’ as regards the content of clause nine of the purchase agreement. It is claimed, in particular on this point, that the clause was linked to the transaction and cannot be construed or applied outside of that context and of a difficult negotiation process characterised by on-going interference by the Portuguese Government.

2. Second plea in law, alleging infringement of Article 101 TFEU — It is claimed in this regard that the Commission committed a manifest error of assessment of the facts and infringed the principle of overall assessment of the evidence as regards the context within which the clause was agreed, the conduct of the parties concerned and the purpose of the clause.

3. Third plea in law, alleging infringement of the rules concerning the burden of proof and sound administration, of the rights of the defence and of the presumption of innocence as regards the evidence of the intervention by the Portuguese Government in the negotiations and in the conception and maintenance of the clause at issue.

4. Fourth plea in law, alleging infringement of Article 101 TFEU — It is claimed in this regard that the Commission failed to provide adequate reasons for finding that, and incorrectly assessed whether, the clause was capable of restricting competition; a necessary condition to there being an infringement, at least by object, of Article 101 TFEU.
—

Annul the decision of the Court of Auditors of 13 December 2012 not to refer the matter to the Court of Justice in order to request it to examine whether Ms S., at that time a Member of the Court of Auditors, no longer fulfilled the requisite conditions or met the obligations arising from her office and, should her term of office have already ended, to deprive her of her right to a pension;
EN Official Journal of the European Union C 171/34

Action brought on 10 April 2013 — 1872 Holdings/OHIM — Havana Club International (THE SPIRIT OF CUBA)

(Case T-207/13)

2013/C 171/64

Language in which the application was lodged: English

Parties

Applicant: 1872 Holdings vof (Amsterdam, Netherlands) (represented by: M. Antoine-Lalance, lawyer)

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

Other party to the proceedings before the Board of Appeal: Havana Club International, SA (Havana, Cuba)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Marked of 31 January 2013 in case R 684/2012-1;

— Order the Office 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: The word mark ‘THE SPIRIT OF CUBA’ for goods and services of classes 33, 35 and 42 — Community trade mark registration No 2 109 106

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The application of invalidity was based on Articles 52(1)(a) and 7 (1)(b), (c) and (g) of Council Regulation No 207/2009

Decision of the Cancellation Division: Declared the contested Community trade mark invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 207/2009.
EN Official Journal of the European Union C 171/31

Action brought on 3 April 2013 — dm-drogerie markt/ OHIM — V-Contact (CAMEA)

(Case T-195/13)

2013/C 171/58

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH & Co. KG (Karlsruhe, Germany) (represented by: B. Beinert and O. Bludovsky, lawyers)

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

Other party to the proceedings before the Board of Appeal: V-Contact Kft (Szada, Hungary)

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2013 (Appeal relating to Opposition Proceedings No R 452/2012-1) and, by way of correction, delete the applicant’s trademark;

— Alternatively annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2013 (Appeal relating to Opposition Proceedings No R 452/2012-1) and, remit the case to the Office for Harmonisation;

— Alternatively annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2013 (Appeal relating to Opposition Proceedings No R 452/2012-1).

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘CAMEA’ for, inter alia, goods in classes 3, 5 and 16 — Community trade mark application No 9 279 928

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

Mark or sign cited in opposition: International registration designating, inter alia, the European Union and covering goods in classes 3, 5 and 8

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) of Council Regulation No 207/2009.
3.

Third plea in law, alleging that the letter of the Commission No AG/ss ener.c.l(2012)1664829 is unlawful. — The letter of the Commission unlawfully states that an administrative act in order to be reviewable via a request for Internal Review pursuant to the EU Regulation 1367/2006 has to be an act of individual scope and to be an act adopted by an EU institution having legally binding effects.
EN Official Journal of the European Union C 189/26

Action brought on 18 April 2013 — Nutrexpa v OHIM — Kraft Foods Italia Intellectual Property (Cuétara Maria ORO)

(Case T-218/13)

2013/C 189/54

Language in which the application was lodged: Spanish

Parties

Applicant: Nutrexpa, SL (Barcelona, Spain) (represented by: J. Grau Mora, M. Ferrándiz Avendaño and Y. Sastre Canet, lawyers)

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

Other party to the proceedings before the Board of Appeal: Kraft Foods Italia Intellectual Property Srl (Milan, Italy)

Form of order sought

The applicant claims that the General Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 February 2013 in Case R 2455/2011-1, whereby it rejected the application for registration of the figurative Community trade mark No 8 481 863‘Cuétara Maria ORO’ for ‘Preserved frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; milk products’ (Class 29) and ‘Coffee, tea, cocoa, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; sauces (condiments); biscuits’ (Class 30), which should consequently be registered by OHIM;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark containing the word elements ‘Cuétara Maria ORO’ — Application for registration of Community trademark No 8 481 863 for goods in Classes 5, 29 and 30

Proprietor of the mark or sign cited in the opposition proceedings: Kraft Foods Italia Intellectual Property Srl

Mark or sign cited in opposition: National and Community figurative marks containing the word element ‘ORO’ for goods in Classes 29 and 30

Decision of the Opposition Division: Opposition upheld in part

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Breach of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 207/36

Action brought on 8 April 2013 — Square v OHIM — Caisse régionale de crédit agricole mutuel Pyrénées Gascogne (SQUARE)

(Case T-213/13)

2013/C 207/60

Language in which the application was lodged: French

Parties

Applicant: Square, Inc. (San Francisco, United States) (represented by: M. Graf, lawyer)

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

Other party to the proceedings before the Board of Appeal: Caisse régionale de crédit agricole mutuel Pyrénées Gascogne (Serres-Castet, France)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2013 in Case R 775/2012-1;

— order the defendant to pay the costs of the procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Square, Inc.

Community trade mark concerned: The international registration designating the European Union of the word mark SQUARE for goods and services in Classes 9, 35 and 38 — international trade mark designating the European Union No W 1 032 395

Proprietor of the mark or sign cited in the opposition proceedings: Caisse régionale de crédit agricole mutuel Pyrénées Gascogne

Mark or sign cited in opposition: National word mark SQUARE-énergie for goods and services in Classes 31, 35, 36, 38, 41, 42 and 44

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009
EN Official Journal of the European Union C 207/47

Action brought on 21 May 2013 — Max Mara Fashion Group/OHIM — Mackays Stores (M&Co.)

(Case T-272/13)

2013/C 207/78

Language in which the application was lodged: English

Parties

Applicant: Max Mara Fashion Group Srl (Torino, Italy) (represented by: F. Terrano, lawyer)

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

Other party to the proceedings before the Board of Appeal: Mackays Stores Ltd (Renfrew, United Kingdom)

Form of order sought

The applicant claims that the Court should:

— Annul the contested decision of the Second Board of Appeal of 7 March 2013 in Case R 1199/2012-2;

— Order OHIM to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark containing the word element ‘M&Co.’ for goods and services in classes 25 and 35 — Community trade mark application No 9 128 679

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

Mark or sign cited in opposition: Figurative marks containing the word element ‘MAX&Co.’ for goods and services in classes 18, 24, 25, 35, 42

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.
EN Official Journal of the European Union C 226/25

Action brought on 13 June 2013 — Vita Phone v OHIM (LIFEDATA)

(Case T-318/13)

(2013/C 226/34)

Language of the case: German

Parties

Applicant: Vita Phone GmbH (Mannheim, Germany) (represented by P. Ruess and A. Doepner-Thiele, lawyers)

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

Form of order sought

The applicant claims that the Court should:

— Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2013 in Case R 1072/2012-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘LIFEDATA’ for goods and services in Classes 10 and 44 — Community trade mark application No 10 525 053

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law:

— Infringement of Article 7(1)(b) of Regulation No 207/2009