ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 152/27

Action brought on 18 March 2011 — Sport Eybl & Sports Experts v OHIM — Seven (SEVEN SUMMITS)

(Case T-179/11)

2011/C 152/48

Language in which the application was lodged: English

Parties

Applicant: Sport Eybl & Sports Experts GmbH (Wels, Austria) (represented by: S. Fürst, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seven SpA (Leinì, Italy)

Form of order sought

— Overrule the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2011 in case R 364/2010-4;

— Fix the total amount of costs to be paid by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘SEVEN SUMMITS’, in colours blue and red, for amongst others goods in class 18 — Community trade mark application No 6307243

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 in opposition: Community trade mark registration No 3489234 of the figurative mark ‘Seven’, for goods in classes 16 and 18; Community trade mark registration No 4783866 of the figurative mark ‘7Seven’, for goods in classes 16 and 18

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 No 207/2009, as the Board of Appeal wrongly determined the existence of likelihood of confusion.
EN Official Journal of the European Union C 194/18

Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

(Case T-225/11)

2011/C 194/29

Language in which the application was lodged: German

Parties

Applicant(s): Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

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 10 February 2011 in Case R 740/2010-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Caventa AG.

Community trade mark concerned: Figurative mark ‘BERG’ for goods in Classes 25 and 28 (Application No 7 124 084).

Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35 (Community trade mark No 3 383 676), the opposition being directed against registration for goods in Classes 25 and 28.

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 (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (Consolidated Version) (OJ 2009 L 78, p. 1).
2.

Second plea in law, alleging infringement of Articles 94 TFEU to 96 TFEU in that the Commission was required to ensure proper application of Council Regulation (EEC) No 684/92, (1) efficiently to apprehend operators which had not undergone the authorisation procedure laid down in that regulation and to put an end to the discrimination caused by application of the regulation. The applicant refers to the fact that necessary measures were not taken by the Commission with regard to implementing the regulation in question despite a number of complaints made by the applicant, due to which it is shown that the Commission was aware of the situation. The defendant’s failure to act, when effectively it was aware of the situation adversely affecting the applicant, constitutes a serious and manifest failure to fulfil obligations leading to a sufficiently serious infringement of Articles 94 TFEU to 96 TFEU.
EN Official Journal of the European Union C 211/28

Action brought on 12 May 2011 — International Engine Intellectual Property Company v OHIM (PURE POWER)

(Case T-248/11)

2011/C 211/60

Language of the case: English

Parties

Applicant: International Engine Intellectual Property Company, LLC (Warrenville, United States) (represented by: C. Thomas and B. Reiter, lawyers)

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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2011 in case R 2310/2010-2;

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

— Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PURE POWER’ for goods in class 12

Decision of the Trade Marks Department: Refused the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b), (c) and 7(2) of Council Regulation No 207/2009 as well as the ‘general principles of trademark law’, as the Board of Appeal found that the mark applied for was of descriptive character for the goods in respect of which registration was sought and devoid of any distinctiveness.
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The appellant claims inter alia the following: lack of jurisdiction of the formation of the Tribunal which adopted the decisions under appeal, the unlawful rejection of the claim for judgment in default, the unlawful decision to grant to the Commission extension of time-limits, the rejection of the request to join the proceedings with other proceedings between the parties, the erroneous summary of the case in the preparatory report for the hearing and in the judgment under appeal, the bias of the Judge-Rapporteur, the breach of the Tribunal’s language rules and the discrimination against the appellant on the basis of language and the failure to translate procedural documents.
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the applicant claims that the Commission acted in breach of its own ‘Best Practices’ in that it first asked the applicant to comment on the draft Contested Decision but did not then take any account of those comments; also in that the Contested Decision differs significantly from the draft. Furthermore, the applicant claims that the constant amendments to the requests constitute clear evidence of the lack of diligence which characterised the Commission’s conduct, in breach of the principle of sound administration.
EN Official Journal of the European Union C 238/22

Action brought on 7 June 2011 — Deutsche Bahn and Others v Commission

(Case T-290/11)

2011/C 238/41

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), DB Mobility Logistics AG (DB ML AG) (Berlin, Germany), DB Netz AG (Frankfurt am Main, Germany), Deutsche Umschlaggesellschaft Schiene-Strasse mbH (DUSS) (Bodenheim, Germany) DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J.S. Brückner and O. Mross, lawyers)

Defendant: European Commission

Forms of order sought

The applicants claim that the Court should:

— annul the Commission’s inspection decision of 30 March 2011 notified on 31 March 2011;

— annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

— in particular order the Commission to return all the copies of documents made during the inspections, on pain of the annulment of the future Commission decision by the General Court, and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 2365 of 30 March 2011 (Cases COMP/39.678 and COMP/39.731), ordering, in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (1), inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group and of the provision of rail-linked services.

In support of their action, the applicants make five pleas in law.

1. First plea: infringement of the fundamental right to inviolability of one’s premises by reason of lack of prior judicial authorisation.

2. Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from the factual and the legal point of view.

3. Third plea: Unlawfulness of the inspection decision, as it is based on information obtained by the Commission in the course of implementing the inspection decision on the system of rebates for electric traction energy, in the context of a very broad inquiry (‘fishing expedition’), and thus in breach of the applicants’ defence rights.

4. Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific subject-matter of the inspection.

5. Fifth plea: infringement of the proportionality principle, as the Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.

(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).
1.

The first plea in law alleges infringement of essential procedural requirements. The applicant criticises the Council of the European Union, first, of failing to provide a statement of reasons and, second, of infringing the principle of proportionality, in that the restrictive measures go beyond what is necessary for achieving the objectives pursued by the Council of the European Union.
3.

Third plea in law, alleging infringement and misinterpretation of Article 8 of Regulation (EC) No 884/2006, and Annex I thereto, and of Article 4 of Regulation (EC) No 2148/1996, as amended by the Annex to Commission Regulation (EC) No 915/2006, and breach of the principle of legal certainty, the principle that legislation must not be retroactive and the principle of the protection of legitimate expectations, in relation to the 5 % flate-rate financial adjustment for the 2006 financial year, owing to ‘late inventory controls’. The Italian Government submits that the Commission acted in breach of the transitional rules provided for in Point 5 of Section AII of Annex I to Regulation No 884/2006. Given that the AGEA had already carried out those activities as part of the inspections required under the Italian legislation, and had furnished proof of this to Commission staff, by handing over all the loading and discharge registers and the related records to the Commission delegation in the course of the May 2007 inspection visit, the transitional rules should have applied and, accordingly, no penalty should have been imposed on the Italian State, which — owing to genuine organisational difficulties regarding coordination with Agecontrol — could be regarded as entitled to submit only the summary documents in February 2007. The Italian Government alleges breach of the principle of legal certainty, the principle that legislation must not be retroactive, the principle of the protection of legitimate expectations and the principle of proportionality, on the ground that it is inconsistent with those principles to apply an inventory obligation immediately in respect of operations which had long been completed by the time that those regulations entered into force on 23 and 24 June 2006 (in particular, the Annex to Regulation No 915/2006) and shortly before the accounts were closed in respect of the EAGGF year on 30 September 2006.
EN Official Journal of the European Union C 238/19

Action brought on 30 May 2011 — Hotel Reservation Service Robert Ragge v OHIM — Promotora Imperial (iHotel)

(Case T-277/11)

2011/C 238/35

Language in which the application was lodged: German

Parties

Applicant: Hotel Reservation Service Robert Ragge GmbH (Cologne, Germany) (represented by: M. Koch, lawyer)

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

Other party to the proceedings before the Board of Appeal: Promotora Imperial, SA

Form of order sought

— Vary the decision of the First Board of Appeal of 24 February 2011 in Case R 832/2010-1 so as to uphold the main appeal and annul opposition No B 1458571; order the opponent to pay the costs of the opposition and appeal proceedings; uphold the decision as to the remainder;

— Order OHIM to pay the costs of this action.

Pleas in law and main arguments

Applicant for a Community trade mark: Hotel Reservation Service Robert Ragge GmbH.

Community trade mark concerned: Word mark ‘iHotel’ for services in Classes 35, 39, 41, 42 and 43 — application No 6912877.

Proprietor of the mark or sign cited in the opposition proceedings: Promotora Imperial, SA

Mark or sign cited in opposition: Community word mark ‘i-hotel’ for goods and services in Classes 16, 41 and 43.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the trade marks at issue. The applicant claims that the Board of Appeal was incorrect in holding there to be similarity both between the goods and services concerned and between the trade marks at issue.
EN Official Journal of the European Union C 269/50

Action brought on 20 June 2011 — Brainlab v OHIM (BrainLAB)

(Case T-326/11)

2011/C 269/111

Language of the case: German

Parties

Applicant: Brainlab AG (Feldkirchen, Germany) (represented by J. Bauer, lawyer)

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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 April 2011 in Case R 1596/2010-4;

— Refer the case back to the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a decision on the question whether all due care was taken in respect of the renewal of the relevant Community trade mark BrainLAB, No 1 290 113;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark BrainLAB for goods and services in Classes 9, 10 and 42

Decision of the department ‘Register and associated databases’: Dismissal of the application for restitutio in integrum as regards the time-limit for filing the request for renewal and paying the renewal fee

Decision of the Board of Appeal: Dismissal of the application for restitutio in integrum and finding that Community trade mark No 1 290 113 had expired

Pleas in law: Infringement of Article 81 of Regulation No 207/2009 as it was not possible for any of the parties, in spite of all due care required by the circumstances having been taken, to comply with a time-limit vis-à-vis the defendant, as a result of which the loss of a right occurred and the two-month time-limit for the filing of the application for restitutio in integrum was complied with.
EN Official Journal of the European Union C 282/43

Action brought on 29 July 2011 — Ellinika Touristika Akinita v Commission

(Case T-419/11)

2011/C 282/80

Language of the case: Greek

Parties

Applicant: Ellinika Touristika Akinita A.E. (Athens, Greece) (represented by: N. Fragkakis, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— allow the application in its entirety;

— annul and set aside the contested decision of the Commission addressed to the Hellenic Republic;

— order that any sum that may have been ‘recovered’ directly or indirectly from the applicant in implementation of the contested decision be refunded with interest;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision C(2011) 3504 final of 24 May 2011 relating to State aid to certain Greek casinos, No C 16/2010 (ex NN 22/2010, ex CP 318/2009), which was implemented by the Hellenic Republic.

The applicant puts forward the following grounds for annulment.

The first ground is derived from the incorrect interpretation and application of Article 107(1) TFEU and insufficient reasoning in breach of Article 296 TFEU. In particular, the measure under consideration: (i) does not ensure an economic advantage for the casino of Parnitha and that of Corfu through the transfer of State resources, (ii) is not selective in nature and (iii) is not capable of affecting trade between Member States and does not distort or threaten to distort competition.

The second ground is derived from the incorrect interpretation and application of Article 14(1)(a) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). In particular: (i) the recovery of unlawful State aid can be sought only from the actual beneficiaries of the aid and (ii) there is no identity between the actual beneficiaries of the measure at issue (the casinos’ customers) and the persons to which the order for recovery is addressed (the casinos of Corfu, Parnitha and Thessaloniki), which were not charged for admission tickets.

The third ground is derived from the incorrect interpretation and application of Article 14(1)(b) of that regulation. Recovery of the aid at issue is contrary to: (i) the principle of the protection of legitimate expectations and (ii) the principle of proportionality.
EN Official Journal of the European Union C 282/26

Action brought on 12 July 2011 — Arla Foods v OHIM — Artax (Lactofree)

(Case T-364/11)

2011/C 282/55

Language in which the application was lodged: English

Parties

Applicant: Arla Foods AMBA (Viby J, Denmark) (represented by: J. Hansen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Artax Beteiligungs- und Vermögensverwaltungs AG (Linz, Austria)

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 April 2011 in case R 1357/2009-2, and Community trade mark registration No 4647533 be declared invalid for goods in classes 5, 29, 30 and 32 in accordance with the decision of the Cancellation Division of 11 September 2009; and

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the Cancellation Division, before the Board of Appeal and before the General Court.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark ‘Lactofree’, for goods in classes 5, 29, 30 and 32 — Community trade mark registration No 4647533

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request pursuant to Articles 53(1)(a) and 8(1)(b) of Council Regulation (EC) No 207/2009, which was based on the earlier Community trade mark registration No 4532751 for the figurative mark (in colour) ‘lactofree’, for goods in class 29

Decision of the Cancellation Division: Upheld the cancellation for a part of the goods

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and dismissed the request for a declaration of invalidity

Pleas in law: Infringement of Articles 53(1)(a) and 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its evaluation of the comparison of the signs and thus in the overall assessment as to the likelihood of confusion between the figurative marks ‘lactofree’ and ‘Lactofree’.
EN Official Journal of the European Union C 282/47

Action brought on 4 August 2011 — Iberdrola v Commission

(Case T-431/11)

2011/C 282/87

Language of the case: Spanish

Parties

Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

— annul Article 1(1) of the decision;

— in the alternative, annul Article 1(4) and (5) of the decision;

— in the further alternative, annul Article 4 of the decision, or amend its scope as appropriate, and

— order the Commission to pay all the costs arising from these proceedings.

Pleas in law and main arguments

This action has been brought against the Commission's Decision of 12 January 2011 in Case No C 45/2007 (ex NN 51/2007, ex CP 9/2007), on the tax amortisation of financial goodwill for foreign shareholding acquisitions implemented by Spain.

The pleas in law and main arguments are those raised in Case T-429/11 BBVA v Commission.
EN Official Journal of the European Union C 282/46

Action brought on 1 August 2011 — Maharishi Foundation v OHIM (MÉDITATION TRANSCENDANTALE)

(Case T-426/11)

2011/C 282/84

Language of the case: English

Parties

Applicant: Maharishi Foundation Ltd (St. Helier, Jersey) (represented by: A. Meijboom, 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 the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 April 2011 in case R 1294/2010-2;

— Order the defendant to pay the costs

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘MÉDITATION TRANSCENDANTALE’ for goods and services in classes 16, 35, 41, 44 and 45 — Community trade mark application No 8246704

Decision of the Examiner: Rejected the application for a Community trade mark, for part of the goods and services

Decision of the Board of Appeal: Allowed the appeal and remitted the case to the Examination Division for further prosecution

Pleas in law: The applicant puts forward four pleas in law: (i) infringement of Articles 75 and 7(1)(a) of Council Regulation No 207/2009, as the Board of Appeal did not explicitly decided on Article 7(1)(a) of CTMR, but did, nevertheless, consider that the mark ‘MÉDITATION TRANSCENDANTALE’ is generic; (ii) infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly decided that the mark is devoid of any distinctive character; (iii) infringement of Article 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal incorrectly concluded that the mark consists exclusively of indications, which may serve, in trade, to designate characteristics of the goods or services, for which applicant filed the mark; and (iv) infringement of Article 7(3) of Council Regulation No 207/2009, as the Board of Appeal incorrectly decided that the mark has not become distinctive in relation to the goods or services, for which registration is requested in consequence of the use, which has been made of it.