ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 55/49

Appeal brought on 16 January 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-41/06 Marcuccio v Commission

(Case T-20/09 P)

(2009/C 55/87)

Language of the case: Italian

Parties

Appellant: Commission of the European Communities (represented by A. Dal Ferro, lawyer, and by C. Berardis-Kayser and J. Currall, acting as Agents)

Other party to the proceedings: Luigi Marcuccio (Triase, Italy)

Form of order sought by the appellant

— set aside the judgment under appeal;

— refer the case back to the Civil Service Tribunal in order that it may adjudicate on the other pleas put forward by the appellant.

Pleas in law and main arguments

This appeal is directed against the judgment of the Civil Service Tribunal (CST) of 4 November 2008, by which it annulled the appellant's decision of 30 May 2005, ordering that the applicant at first instance should take compulsory retirement on grounds of his incapacity, which had been established by the Invalidity Committee. In addition, the CST fixed the compensation for non-material damage suffered at the sum of EUR 3 000.

The annulment was granted in reliance exclusively on the first plea in law, based on a failure to state adequate reasons.

In this regard, the appellant states that in reaching this result the tribunal hearing the case at first instance erred in law in holding, in essence, that doctors involved in incapacity proceedings based on Articles 53, 59 and 78 of the Staff Regulations are required to provide, in support of their findings, a statement of reasons similar to that required in the case of occupational disease or for the purposes of Article 73. In so doing, according to the Commission, the CST confused the two procedures, with the result that the incapacity procedure was made unduly cumbersome.
EN Official Journal of the European Union C 69/50

Action brought on 20 January 2009 — Easycamp v OHIM — Oase Outdoors (EASYCAMP)

(Case T-29/09)

(2009/C 69/109)

Language in which the application was lodged: English

Parties

Applicant: Easycamp BV (Amersfoort, The Netherlands) (represented by: C. Beijer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Oase Outdoors ApS (Give, Denmark)

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 30 October 2008 in joined cases R 853/2007-1 and R 916/2007-1;

— Allow the applicant to continue to use the Community trade mark — application No 3 188 943 for services in class 43; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘EASYCAMP’, for services in classes 39, 41 and 43

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: Danish trade mark registration No 199 903 355 of the figurative mark ‘easycamp’ for goods in classes 18, 20, 22, 24, 25 and 28; German trade mark registration No 39 910 614 of the figurative mark ‘easycamp’ for goods in classes 18, 20, 22, 24, 25 and 28; Benelux trade mark registration No 944 316 of the figurative mark ‘easycamp’ for goods in classes 18, 20, 22, 24, 25 and 28; United Kingdom trade mark registration No 2 191 370 of the figurative mark ‘easycamp’ for goods in classes 18, 20, 22, 24, 25 and 28; The unregistered sign ‘easy camp’ used in Denmark and the United Kingdom.

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeals

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 69/51

Action brought on 26 January 2009 — Procaps v OHIM — Bioframa (PROCAPS)

(Case T-35/09)

(2009/C 69/112)

Language in which the application was lodged: Spanish

Parties

Applicant: Procaps SA (Barranquilla, Colombia) (represented by: M. Vidal-Quadras Trias de Bes, 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: Biofarma SAS (Neuilly sur Seine, France)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM (Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2008 in Case R 867/2007-4 which was notified to the parties on 25 November 2008.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘PROCAPS’ (Trade mark application No 3.519.394) for goods and services in Classes 5, 35, 39, 40, 44.

Proprietor of the mark or sign cited in the opposition proceedings: BIOFARMA, société par actions simplifiée.

Mark or sign cited in opposition: National and international word mark ‘PROCAPTAN’, for goods in Class 5.

Decision of the Opposition Division: Opposition: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Incorrect application of Article 9(1)(b) of Regulation No 40/94 on the Community trade mark.
EN Official Journal of the European Union C 90/34

Action brought on 19 February 2009 — Netherlands v Commission

(Case T-70/09)

2009/C 90/52

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels and M. Noort, Agents)

Defendant: Commission of the European Communities

Form of order sought

— annul in part Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund within the framework of the single programming document for the Groningen-Drenthe region coming under objective 2 — no 97.07.13.003 — granted in accordance with Commission Decision C(1997) 1362 of 26 May 1997, in so far as the former decision relates to the 2% flat-rate adjustment to the budget in the amount of EUR 1 139 346,24 which was applied and the expenditure amounting in total to NLG 1 160 456 which it was declared could not be subsidised; and

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of its application the Netherlands first alleges infringement of the principle of legal certainty in that obligations are imposed on a Member State on the basis of case-law of the Court of Justice which post-dates the imposition of those obligations and which at that moment were not clear, precise and foreseeable for the Member State concerned.

In the alternative, the Netherlands alleges infringement of the principle that reasons must be given by virtue of the fact that no more detailed grounds were provided as to the nature of the cross-border interest of the project in question, that project having in the interim been approved and the value of which fell below the thresholds laid down in the public procurement directives.

In conclusion, the Netherlands alleges a breach of Article 211 EC by reason of the fact that the Commission applied a flat-rate reduction of 2% on the ground of the alleged failure to comply with the national conditions governing the project, even though the Commission has power only in respect of compliance with the Community conditions.
EN Official Journal of the European Union C 82/30

Action brought on 23 January 2009 — dm-drogerie markt v OHIM — Distribuciones Mylar (dm)

(Case T-36/09)

(2009/C 82/54)

Language in which the application was lodged: English

Parties

Applicant: dm-drogerie markt GmbH + Co. KG (Karlsruhe, Germany) (represented by: O. Bludovsky and C. Mellein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Distribuciones Mylar, SA (Gelves, 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 30 October 2008 in case R 228/2008-1 and, by way of correction, reject the opposition entirely;

— Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1 and remit the case to OHIM;

— Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 October 2008 in case R 228/2008-1; and

— Order the other party to the proceedings before the Board of Appeal 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 ‘dm’, for goods in classes 1, 3-6, 8-11, 14, 16, 18, 20-22, 24-32, 34 and for services in class 40

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: Spanish trade mark registration No 2 561 742 of the figurative mark ‘DM’ for goods and services in classes 9 and 39

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 57 and 59 of Council Regulation 40/94 as the Board of Appeal erred in its finding that the letter of the defendant of 8 June 2007 did not suspend the appeal period; Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the trade marks concerned due to the similarity of the goods covered; Infringement of Rules 17(2) and (4) of Commission Regulation No 2868/95 (1), as the Board of Appeal failed to find that the other party to the proceedings before the Board of Appeal failed to state the essential details of the opposition.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).
EN Official Journal of the European Union C 102/33

Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

(Case T-98/09)

2009/C 102/49

Language in which the application was lodged: French

Parties

Applicant: Tubesca (Ailly-sur-Noye, France) (represented by: F. Greffe, avocat)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tubos del Mediterráneo, SA (Sagunto, Spain)

Form of order sought

— Annulment of the decision delivered by the Fourth Board of Appeal of OHIM of 17 December 2008 in Case No R 518/2008-4.

Pleas in law and main arguments

Applicant for a Community trade mark: Tubos del Mediterráneo, SA

Community trade mark concerned: Figurative mark ‘T TUMESA TUBOS DEL MEDITERRANEO S.A.’ for goods and services in Classes 6, 35 and 42 — application No 4 085 098

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

Mark or sign cited in opposition: National and international word and figurative marks ‘TUBESCA’ for goods in Classes 6, 19 and 20

Decision of the Opposition Division: Opposition partially upheld; partial refusal to register the mark applied for

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

Pleas in law: There is a likelihood of confusion between the opposing marks for consumers displaying average attention or end users, especially since the marks ‘TUBESCA’ are well known and highly distinctive.
EN Official Journal of the European Union C 90/37

Action brought on 10 March 2009 — UCAPT v Council

(Case T-96/09)

2009/C 90/57

Language of the case: French

Parties

Applicant: Union des Coopératives Agricoles des Producteurs de Tabac de France (UCAPT) (Paris, France) (represented by: B. Peignot and D. Garreau, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003;

— Order the Council to pay costs in the amount of EUR 10 000.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Council Regulation No 73/2009 (1) relating to direct support schemes for farmers under the common agricultural policy, Article 135 of which provides for a reduction, as from the financial year 2011, in the level of direct support for the production of tobacco to 50% of the average level of support granted in 2000, 2001 and 2002. Such a reduction was already provided for by Article 143e of Regulation No 1782/2003. (2)

In support of its action the applicant submits four pleas in law alleging:

— a procedural irregularity in that no study of the impact of the reform of the aid scheme on the tobacco sector was carried out prior to the adoption of the contested regulation;

— accordingly, a misuse of powers;

— infringement of the principle of proportionality as the reduction in direct support to 50% is inappropriate to attain the two objectives of the reform of the tobacco support scheme, namely the alignment of prices to those of the world market and the promotion of conversion measures for tobacco-producing regions in rural development programmes;

— infringement of Article 33 EC in so far as the contested regulation fails to have regard for some of the objectives of the common agricultural policy, namely that of ensuring a fair standard of living for the agricultural community and of stabilising markets.

(1) Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

(2) Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).
EN Official Journal of the European Union C 113/41

Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER)

(Case T-112/09)

2009/C 113/83

Language in which the application was lodged: English

Parties

Applicants: Icebreaker Ltd (Wellington, New Zealand) (represented by: L. Prehn, lawyer)

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

Other party to the proceedings before the Board of Appeal: Gilmar SpA (San Giovanni in Marignano (Rimini), Italy)

Form of order sought

— Reverse the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2009 in case R 1536/2007-4 and approve for registration for goods in class 25 the Community trade mark concerned; and

— Order OHIM 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 ‘ICEBREAKER’, for goods in classes 9, 24 and 25 — application No 3 205 523

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: Italian trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; International trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Spanish trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Italian trade mark registration of the word mark ‘ICE’ for goods in class 25; International trade mark registration of the word mark ‘ICE’ for goods in class 25

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there is a likelihood of confusion between the trade marks concerned.
EN Official Journal of the European Union C 102/22

Action brought on 17 February 2009 — Volkswagen AG v OHIM

(Case T-63/09)

2009/C 102/35

Language in which the application was lodged: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla and S. Risthaus, 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: Suzuki Motor Corporation

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM of 9 December 2008 in Case R-749/2007-2;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Suzuki Motor Corporation

Community trade mark concerned: Word mark ‘SWIFT GTi’ for goods in Class 12 (application No 3 456 084)

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

Mark or sign cited in opposition: German word mark ‘GTI’ (No 39 406 386) and international word mark ‘GTI’ (No 717 592) for goods in Class 12

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) 40/94, (1) since there is a likelihood of confusion between the two opposing marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 129/18

Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX)

(Case T-131/09)

2009/C 129/32

Language in which the application was lodged: English

Parties

Applicants: Farmeco SA Dermocosmetics, trading as “Farmeco SA” (Athens, Greece) (represented by: N. Lyberis, lawyer)

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

Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)

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 2 February 2009 in case R 60/2008-4, to the extent that the application for the Community trade mark concerned was rejected for all goods in classes 3 and 5 and certain goods in class 16;

— Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of 26 October 2007 of the Opposition Division and allow the Community trade mark concerned to proceed to registration for all goods applied for; and

— Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred in opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “BOTUMAX”, for goods in classes 3, 5 and 16 — application No 3 218 237

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: Various Community and national trade mark registrations of the word mark or the sign “BOTOX” for goods and services in classes 5, 16, and 42, respectively

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected partially the application for the Community trade mark concerned

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned in respect of identical or highly similar goods, in spite of the existing differences between the visual and phonetic perception of the two signs; Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly considered that the conditions for the application of the said article were met.
EN Official Journal of the European Union C 129/16

Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack)

(Case T-113/09)

2009/C 129/28

Language in which the application was lodged: German

Parties

Applicant: PromoCell bioscience alive GmbH Biomedizinische Produkte (Heidelberg, Germany) (represented by K. Mende, lawyer)

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of 15 January 2009 in Case R 996/2008-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SupplementPack’ for goods and services in Classes 1, 3, 5, 41 and 42 (Application No 5 433 883)

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation (EC) No 40/94 as the mark applied for has the requisite distinctive character and its availability does not have to be preserved
EN Official Journal of the European Union C 141/47

Action brought on 27 March 2009 — I Marchi Italiani and B Antonio Basile 1952 v OHIM — Osra (B Antonio Basile 1952)

(Case T-133/09)

2009/C 141/99

Language in which the application was lodged: Italian

Parties

Applicants: I Marchi Italiani (Naples, Italy) and B Antonio Basile 1952 (Giugliano, Italy) (represented by: G. Militerni, 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: Osra SA (Rovereta, Italy)

Form of order sought

— Annul the decision of the Second Board of Appeal dated 09.01.2009, notified to the applicants in the present case on 30.01.2009 in proceedings R 502/2008, between I Marchi Italiani Srl and Osra S.A., which upheld the decision of the Cancellation Division, which allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’, following the action brought by Osra S.A.;

— Declare the registration of the mark ‘B Antonio Basile 1952’ to be valid and effective as from the date of filing of the application and/or registration of that mark;

— 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: Figurative mark containing the wording ‘B Antonio Basile 1952’ (Community trade mark No 5 274 121 (divisional registration resulting from the division of registration No 1 462 555 following partial assignment of same), for goods in Classes 14, 18 and 25.

Proprietor of the Community trade mark: the applicants.

Applicant for the declaration of invalidity: Osra S.A.

Trade mark right of applicant for the declaration: Figurative mark ‘BASILE’ (Italian registration No 738 901 and international registration No R 413 396 B) for goods in Class 25.

Decision of the Cancellation Division: Allowed the application for annulment and declared the Community trade mark in its entirety to be invalid.

Decision of the Board of Appeal: Dismissed the appeal.

Pleas in law: Incorrect application of Article 52(1)(a) and Article 53(2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and lack of likelihood of confusion.

(1) OJ 1994 L 11, p. 1.