ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 6/18

Action brought on 19 October 2011 — MIP Metro v OHIM — Real Seguros (real,- QUALITY)

(Case T-548/11)

2012/C 6/34

Language in which the application was lodged: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Real Seguros, SA (Porto, Portugal)

Form of order sought

— Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registrations No 249791, No 249793 and No 254390; In case that the request for the stay of proceedings is not granted, to continue the proceeding and to;

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 August 2011 in case R 114/2011-4; and

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The international trade mark registration No W 983683 of the figurative mark ‘real,- QUALITY’, in red, blue and beige, for services in class 36

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: Portuguese trade mark registration No 249791 of the word mark ‘REAL’, for services in class 36; Portuguese trade mark registration No 249793 of the word mark ‘REAL SEGUROS’, for services in class 36; Portuguese figurative mark registration No 254390 comprising the word element ‘REAL’, for services in class 36; various unregistered rights claimed to be protected in all Member States or in Portugal

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

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 assumed that there would be a likelihood of confusion between the applied mark and the opposed marks.
Action brought on 28 November 2011 — Al-Chihabi v Council

(Case T-593/11)

(2012/C 25/119)

Language of the case: English

Parties

Applicant: Fares Al-Chihabi (Aleppo, Syria) (represented by: L. Ruessmann and W. Berg, lawyers)

Defendant: Council of the European Union

Form of order sought

— Annul Council Regulation (EU) No 878/2011 of 2 September 2011 (1) and Council Regulation (EU) No 1011/2011 of 13 October 2011 (2), as well as Council Decision 2011/522/CFSP of 2 September 2011 (3) and Council Decision 2011/684/CFSP of 13 October 2011 (4), and any later legislation to the extent they perpetuate and/or replace the restrictive measures, in so far as they relate to the applicant; and

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

Pleas in law and main arguments

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

1. First plea in law, alleging infringement of the right to good administration, in particular the obligation to state reasons, provided for in Article 41 of the Charter of Fundamental Rights of the European Union, Article 216 TFEU and Article 14 (2) of Council Regulation (EU) No 442/2011 (5).

2. Second plea in law, alleging violation of the applicant’s rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights.

3. Third plea in law, alleging violation of the applicant’s fundamental rights in an unjustified and disproportionate manner, in particular the right to property, the right to respect for one’s good name and reputation, the right to engage in work and conduct a business, and the right to benefit from a presumption of innocence.

4. Fourth plea in law, alleging infringement of the applicant’s right to privacy, in that the measures freezing funds and restricting the freedom of movement also constitute a disproportionate interference with the applicant’s fundamental right to privacy as well as an infringement of the general principle of proportionality.

(1) Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1).

(2) Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 269, p. 18).

(3) Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16).

(4) Council Decision 2011/684/CFSP of 13 October 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 269, p. 33).

(5) Council Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1).
—

State that the contested acts may be annulled in part since the part of the acts which is to be annulled can be separated from the act as a whole;
EN Official Journal of the European Union C 32/27

Action brought on 15 November 2011 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-584/11)

2012/C 32/57

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Other party to the proceedings before the Board of Appeal: Alfred Hartmann (Leer, Germany)

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 1 September 2011 in Case R 2262/2010-1;

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

Pleas in law and main arguments

Registered Community trade mark in respect of which an application for revocation has been made: word mark ‘ATLAS TRANSPORT’ for goods in Class 39.

Proprietor of the Community trade mark: the applicant.

Party applying for revocation of the Community trade mark: Alfred Hartmann.

Decision of the Cancellation Division: rejection of the application for revocation.

Decision of the Board of Appeal: appeal upheld.

Pleas in law: infringement of Rule 40(5), in conjunction with Rule 22, of Implementing Regulation No 2868/95 due to an erroneous assessment of the evidence; infringement of Article 15 of Regulation No 207/2009, since, in its literal interpretation, the defendant addressed the issue alone as to whether there had been a legitimate use of the mark for the corresponding services; infringement of Article 76(1) of Regulation No 207/2009, since, in determining the meaning of the term ‘transport’, the defendant referred merely to one source and thus evaluated that term without due care and insufficiently; infringement of Article 75, sentence 1, of Regulation No 207/2009, since the defendant failed to clearly reason its legal opinion; infringement of Article 75, sentence 2, and Article 76(2) of Regulation No 207/2009 as a result of a breach of the right to be heard.
1.

First plea in law, alleging infringement of Article 107(1) TFEU due to absence of selectivity of the measure — Misjudgement of the relevant reference system: the applicant submits in this connection that the Commission took the wrong reference system as its basis in determining the selectivity of the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax). The applicant takes the view that it follows from the use of the principle of net profit or loss as the applicable reference system, that the provision enabling the fiscal carry forward of losses is not an exception to the reference system, but rather that it restores the reference system. — Failure to have regard to the fact that general rules are not selective: the applicant submits in that regard that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also not selective having regard to the fact that the rule in that statute is of general validity. — Failure to have regard to the justification for the provision enabling the fiscal carry forward of losses on the basis of the nature and general scheme of the German corporation tax system: the applicant submits in this connection that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is in any event justified on the basis of the nature and general scheme of the German corporation tax system with reference to the applicable reference system of the principle of net profit or loss as the expression of the ability-to-pay principle.
EN Official Journal of the European Union C 32/32

Action brought on 30 November 2011 — Woodman Labs V OHIM — 2 Mas 2 Publicidad Integral (HERO)

(Case T-606/11)

2012/C 32/66

Language in which the application was lodged: English

Parties

Applicant: Woodman Labs, Inc. (Sausalito, United States of America) (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: 2 Mas 2 Publicidad Integral, SL (Vitoria-Gasteiz, Spain)

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 29 September 2011 in case R 876/2010-4; and

— Order the costs of the proceedings to be borne by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘HERO’, for goods in class 9 — Community trade mark application No 6750376

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 5883533 of the figurative mark in gold and black ‘hero PICTURES’, for goods and services in classes 9 and 41

Decision of the Opposition Division: The Community trade mark application was allowed to proceed for part of the goods in class 9

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 ruled that likelihood of confusion exists between the earlier mark and the Community trade mark application.
EN Official Journal of the European Union C 58/14

Action brought on 21 December 2011 — Commission/OHMI — European Alliance for Solutions and Innovations (EASI European Alliance Solutions Innovations)

(Case T-659/11)

2012/C 58/27

Language in which the application was lodged: English

Parties

Applicant: European Commission (represented by: A. Berenboom, A. Joachimowicz, and M. Isgour, lawyers, J. Samnadda, and F. Wilman, Agents)

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

Other party to the proceedings before the Board of Appeal: European Alliance for Solutions and Innovations Ltd (London, United Kingdom)

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 11 October 2011 in case R 1991/2010-4;

— Declare therefore invalid the Community trademark No 6112403 registered on 17 October 2008 by the other party to the proceedings before the Board of Appeal in classes 36, 37, 44 and 45; and

— Order the defendant 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 figurative mark ‘EASI European Alliance Solutions Innovations’ in the colours ‘yellow, light blue, blue’, for services in classes 36, 37, 44 and 45 — Community trade mark registration No 6112403

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 on absolute grounds laid down in Article 52(1)(a) in conjunction with Article 7(1)(c) and (h) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The contested decision infringes Article 7(1)(h) of Council Regulation No 207/2009 in conjunction with Article 6 ter (1) of the Paris Convention in so far as the Community trade mark (‘CTM’) has been registered, although its registration falls within the scope of prohibition laid down in those provisions. The contested decision also violates Article 7(1)(g) in so far as such a registration would deceive the public by making them believe that the products and services for which the CTM is registered are approved or endorsed by the European Union or one of its institutions.
EN Official Journal of the European Union C 49/30

Appeal brought on 8 December 2011 by Harald Mische against the judgment of the Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament

(Case T-642/11 P)

2012/C 49/55

Language of the case: English

Parties

Appellant: Harald Mische (Brussels, Belgium) (represented by: R. Holland, J. Mische, and M. Velardo, lawyers)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought by the appellant

— Set aside the judgment of the European Civil Service Tribunal of 29 September 2011 in Case F-93/05 Mische v Parliament and, to the extent possible based on the facts before the Court deliver judgment, and:

— Annul the Parliament’s decision of 4 October 2004 in so far as it determines the appellant’s grading;

— Order the Parliament to make good any damage caused (including damages to his career, legal and regular pay, immaterial damages, with default interest etc.);

— Order the Parliament to pay the cost of these proceedings and those before the Civil Service Tribunal.

Pleas in law and main arguments

In support of the appeal, the appellant relies on three pleas in law.

1. First plea in law, alleging that the Civil Service Tribunal erred in declaring the action inadmissible for having been lodged out of time.

2. Second plea in law, alleging that the Civil Service Tribunal erred in ruling that the action is inadmissible because it would not have been liable to procure any advantage to the appellant, and thus he did not have an interest in bringing the action.

3. Third plea in law, alleging that the Civil Service Tribunal erroneously failed to rule on the pleas raised on the merits of the application, in particular the infringement of Article 41(3) of the Charter of Fundamental Rights of the European Union and/or of Article 5(5) of the Staff Regulations (1).

(1) Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1)
1.

The first plea, alleging an insufficient statement of reasons and breach of the rights of the defence, since the reasons given for the contested measures do not enable the applicant to contest the validity of the measures before the General Court or the latter to review the lawfulness of the measures.
EN Official Journal of the European Union C 65/16

Action brought on 27 December 2011 — Spa Monopole v OHIM — Royal Mediterranea (THAI SPA)

(Case T-664/11)

2012/C 65/31

Language in which the application was lodged: French

Parties

Applicant: Spa Monopole compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. De Brouwer, E. Cornu and E. De Gryse, lawyers)

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

Other party to the proceedings before the Board of Appeal: Royal Mediterranea SA (Madrid, Spain)

Form of order sought

The applicant claims that the General 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 20 October 2011 in Case R 1976/2010-4;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Royal Mediterranea SA

Community trade mark concerned: Word mark ‘THAI SPA’ for goods and services in Classes 16, 41 and 43

Proprietor of the mark or sign cited in the opposition proceedings: Spa Monopole SA/NV.

Mark or sign cited in opposition: Benelux registrations of word marks ‘SPA’ and ‘Les Thermes de Spa’ for goods and services in Classes 32 and 42 (now Class 44).

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 in that the Board of Appeal did not accept a similarity between the ‘restaurant services (food)’ designated in Class 43 in the mark applied for and the ‘mineral water and aerated waters and other non-alcoholic drinks; syrup and other preparations to make beverages’ designated in the ‘SPA’ word mark registered in Benelux; infringement of Article 8(5) of Regulation No 207/2009 in that the Fourth Board of Appeal did not accept the existence of a ‘link’ between the ‘SPA’ mark in Class 32 and the ‘THAI SPA’ mark in Class 43; and infringement of the rights of the defence and of Article 75 of Regulation No 207/2009.
EN Official Journal of the European Union C 65/19

Action brought on 4 January 2012 — BSH Bosch und Siemens Hausgeräte v OHIM (Wash & Coffee)

(Case T-5/12)

2012/C 65/36

Language of the case: German

Parties

Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by S. Biagosch, 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) (OHIM) of 7 November 2011 in Case R 992/2011-4 and the decision of the Office for Harmonisation in the Internal Market (Trade Marks Department) of 11 March 2011 relating to Community trade mark application CTM 9094459 in so far as the application was rejected;

— Order OHIM to bear its own costs and to pay those incurred by the applicant.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Wash & Coffee’ for goods and services in Classes 25, 37 and 43

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: partial dismissal of the appeal

Pleas in law: Infringement of Article 76(1) of Regulation No 207/2009 as OHIM failed to examine the facts on which it based its decision in the manner required and infringement of Article 7(1)(b) of Regulation No 207/2009 as the mark applied for is distinctive
Second plea in law, alleging the absence of any legal basis for the contested regulation

In the applicant’s view, the contested implementing regulation has no legal basis as Regulation No 961/2010 was annulled by the General Court by its judgment of 7 December 2011 in Case T-562/10 in so far as it concerns the applicant; despite the fact that the effects of Regulation No 961/2010 were maintained for a period of two months, that regulation cannot, with regard to the applicant, constitute an effective legal basis for the adoption of an implementing regulation.
EN Official Journal of the European Union C 80/25

Action brought on 20 January 2012 — Athens Resort Casino v Commission

(Case T-36/12)

2012/C 80/42

Language of the case: English

Parties

Applicant: Athens Resort Casino AE Symmetochon (Marrousi, Greece) (represented by: N. Niejahr, Q. Azau, F. Spyropoulos, I. Dryllerakis and K. Spyropoulos, lawyers and F. Carlin, Barrister)

Defendant: European Commission

Form of order sought

— annul the Commission Decision 2011/716/EU of 24 May 2011 on State aid to certain Greek casinos C 16/10 (ex NN 22/10, ex CP 318/09) implemented by the Hellenic Republic (OJ L 285, 1.11.2011, p. 25) (hereafter referred to as ‘the contested decision’); or

— in the alternative, annul the contested decision to the extent it applies to the applicant; or

— further in the alternative, annul the contested decision insofar as it orders the recovery of amounts from the applicant; and

— order the defendant to pay its own costs and the applicant’s costs incurred in connection with these proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that — the defendant violated Article 107(1) TFEU by determining that the contested decision constituted an aid measure by: (a) finding that the applicant benefited from an economic advantage in the form of a ‘fiscal discrimination’ in the amount of 7,20 euros (EUR) per ticket; (b) finding that the measure involved forgone State resources; (c) considering that the measure was selective in favour of the applicant; (d) concluding that the measure distorted competition and had an effect on trade between Member States.

2. Second plea in law, alleging — that the defendant violated Article 296 TFEU by failing to provide adequate reasoning to enable the applicant to understand and the General Court to review the reasoning based on which it found that the applicant benefited from a selective advantage, that any such advantage involved forgone State revenues and would be liable to distort competition and affect trade between Member States.

3. Third plea in law, alleging — that in the event that the Court finds that incompatible aid had been granted to the applicant, the Court should annul the contested decision, insofar as it orders recovery of amounts from the applicant, since that recovery would violate: (a) Article 14(1) first sentence of Regulation 659/1999 (1), pursuant to which recovery shall relate to the aid received by the beneficiary, since the defendant failed to correctly quantify in the contested decision the amount of aid that the applicant may have received; (b) Article 14(1) second sentence of Regulation 659/1999, since recovery in this case infringes general principles of EU law, namely: the principle of legitimate expectations; the principle of legal certainty; and the principle of proportionality.

(1) Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 (now Art. 108) of the EC Treaty (OJ L 83, 27.03.1999, p. 1)