ddrg/super_eurlex huggingface dataset:
Action brought on 19 April 2010 — AISCAT v Commission

(Case T-182/10)

(2010/C 161/85)

Language of the case: Italian

Parties

Applicant: Associazone Italiana delle Società Concessionarie per la costruzione e l’esercizio di Autostrade e Trafori stradali (AISCAT) (Rome, Italy) (represented by: M. Maresca, lawyer)

Defendant: European Commission

Form of order sought

— Annul the decision of the European Commission of 10 February 2010.

Pleas in law and main arguments

The present action seeks the annulment of the decision contained in the letter of the European Commission of 10 February 2010, which ruled out the possibility of establishing an infringement of Article 87 EC (now Article 107 TFEU) on the part of the Italian Republic on the basis that it awarded the concession for the construction and management of a section of motorway (known as the Passante di Mestre), without issuing an invitation to tender, to a semi-public company, CAV SpA (a limited company equally owned by ANAS SpA and the Veneto Region) and financed the construction of the motorway section by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway.

The applicant relies on two grounds in support of its claim that it can be established that the Italian Republic infringed Article 87 EC (now Article 107 TFEU).

First, the direct award by the Italian Republic to CAV of the concession for the construction and management of the Passante di Mestre by means of Article 2(290) of Law No 244 of 24 December 2007 constitutes State aid since, in spite of the fact that the lawful requirements relating to in house procurement were not met, the concession was awarded to a semi-public company whose statutes and management structure confer upon it an unfair competitive advantage. CAV is 50 % owned by ANAS, which, whilst fulfilling a public function as a regulatory body, also operates as an undertaking (the construction and management of motorways) on the market which it itself regulates, to the rules of which it is subject and in respect of which it is itself a grantor of concessions.

Second, the fact that the Italian Republic approved the agreement concluded between ANAS (in its capacity as granting entity) and CAV for the financing of the Passante di Mestre by means of an increase in the tariff payable at toll stations on the parallel and competing section of motorway constitutes a grant of State aid to CAV.

The increase in the tariff was in fact the means by which traffic was diverted onto the new section of motorway (the Passante di Mestre) and, at the same time, brought about a fall in the volume of traffic on the competing section (the Tangenziale di Mestre), which was subject to the increase. The object of the aid is not, therefore, the sum deriving from the increase in the tariff in itself, but rather the competitive advantage which CAV derives from this, in contrast with the loss incurred by the companies operating the Tangenziale di Mestre.
EN Official Journal of the European Union C 179/42

Action brought on 23 April 2010 — Reagens v Commission

(Case T-181/10)

2010/C 179/74

Language of the case: English

Parties

Applicant: Reagens SpA (San Giorgio di Piano, Italy) (represented by: B. O'Connor, Solicitor and L. Toffoletti, D. Gullo and E. De Giorgi, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823);

— Require the Commission to make the documents listed on page 3 of the contested decision publicly available (in their non confidential form); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823), relating to a proceeding under Regulation (EC) No 1049/2001 (1). The decision concerned the request for access to documents relating to applications for inability to pay a fine imposed on the applicant for an infringement of Articles 81 EC and 53 EEA (Case COMP/38589 — Heat Stabilisers).

In support of its submissions, the applicant puts forward the following pleas in law:

The Commission made a manifest error in law applying in an extensive manner the exceptions under Article 4 of Regulation No 1049/2001.

In addition, the Commission made a manifest error in law rejecting the request of access to documents on the basis of a defence of the commercial interests of the undertakings and to protect the purpose of the investigation.

Furthermore, the Commission breached the right of the applicant to have access to the non confidential versions of the documents under Regulation No 1049/2001, by the denial of granting partial access.

Finally, the Commission breached the principles of sound administration, legitimate expectations, as well as the principle that the administration should be lawful, by denying access to the information needed in order to establish how the Commission applies paragraph 35 of the Guidelines on the method of setting fines (2).

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, p. 43.

(2) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, OJ C 210, p. 2.
EN Official Journal of the European Union C 179/48

Action brought on 27 April 2010 — DRV v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich)

(Case T-199/10)

2010/C 179/84

Language in which the application was lodged: German

Parties

Applicant: Deutscher Raiffeisenverband eV (DRV) (Bonn, Germany) (represented by: I. Rinke, 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: Austria Leasing GmbH (Frankfurt, 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 3 February 2010 (Case R 253/2009-1);

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Austria Leasing GmbH.

Community trade mark concerned: Figurative mark which contains the word elements ‘Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich’, in respect of services in Classes 35, 36 and 37.

Proprietor of the mark or sign cited in the opposition proceedings: DRV.

Mark or sign cited in opposition: inter alia, a figurative mark registered in Germany which contains the word element ‘Raiffeisen’, in respect of services in Classes 35, 36, 37, 38, 39, 40, 41 and 42.

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 (EC) No 207/2009, (1) as there is a likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 195/28

Action brought on 21 May 2010 — Telefónica v Commission

(Case T-228/10)

2010/C 195/44

Language of the case: Spain

Parties

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

Defendant: European Commission

Form of order sought

— annul Article 1(1) of the Decision;

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

Pleas in law and main arguments

The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-227/10 Banco Santander v Commission.

The pleas in law and the principal arguments are similar to those relied on in those cases.
EN Official Journal of the European Union C 195/27

Action brought on 12 May 2010 — ratiopharm v OHIM — nycomed (ZUFAL)

(Case T-222/10)

2010/C 195/42

Language in which the application was lodged: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by: S. Völker, 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: nycomed GmbH (Konstanz, Germany)

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 12 March 2010 in Case R 874/2008-4;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘ZUFAL’ for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings: nycomed GmbH

Mark or sign cited in opposition: Community word mark ‘ZURCAL’ for goods in Class 5 and three national word marks ‘ZURCAL’ for goods in Class 5.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 209/44

Action brought on 21 May 2010 — Timehouse v OHIM (Shape of a watch)

(Case T-235/10)

()

2010/C 209/67

Language in which the application was lodged: German

Parties

Applicant: Timehouse GmbH (Eystrup, Germany) (represented by V. Knies, lawyer)

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

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 11 March 2010 in case R 0942/2009-1; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A three-dimensional trade mark, representing a watch for goods in Class 14.

Decision of the Examiner: Rejection of the application for registration.

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

Pleas in law: Infringement of Article 7(1)(b) and of Council Regulation No 207/2009 (1), as the trade mark is distinctive.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 234/45

Action brought on 22 June 2010 — El Coto De Rioja v OHIM — Álvarez Serrano (COTO DE GOMARIZ)

(Case T-276/10)

()

2010/C 234/80

Language in which the application was lodged: Spanish

Parties

Applicant: El Coto De Rioja, S.A. (Oyón, Alava) (Spain) (represented by: J. Grimau Muñoz and J. Villamor Muguerza, 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: María Álvarez Serrano (Gomariz Leiro, Orense) (Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 28 April 2010 in Case R 1020/2008-4 and, consequently, declare invalid Community trade mark No 2 631 828, in Class 33, which contains the verbal element ‘COTO DE GOMARIZ’, 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: Figurative trade mark containing the verbal element ‘COTO DE GOMARIZ’ (Application No 2 631 828) for goods in Class 33 ‘wines’.

Proprietor of the Community trade mark: María Álvarez Serrano

Applicant for the declaration of invalidity of the Community trade mark: EL COTO DE RIOJA S.A.

Trade mark right or sign of the applicant for the declaration: Community word mark ‘COTO DE IMAZ’ (No 339 333) for goods in Classes 29, 32 and 33; Community word mark ‘EL COTO’ (No 339 408) for goods in Classes 29, 32 and 33; and the well-known Spanish marks ‘EL COTO’ and ‘COTO DE IMAZ’ for ‘wines’.

Decision of the Cancellation Division: Annulment of the contested Community trade mark.

Decision of the Board of Appeal: Annulment of the contested decision and dismissal of the application for a declaration of invalidity.

Pleas in law: Incorrect application of Article 52(1) of Regulation No 207/2009 on the Community trade mark, in conjunction with Articles 8(1)(b) and 8(5) of that regulation.
EN Official Journal of the European Union C 221/53

Action brought on 16 June 2010 — Spain v Commission

(Case T-264/10)

()

2010/C 221/84

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: Mrs Nuria Díaz Abad, lawyer)

Defendant: European Commission

Form of order sought

— Annul the decision of the European Commission of 10 May 2010 declaring the suspension of the interim payment application submitted by Spain on 18 December 2009 on the grounds stated in Section 1 of the legal reasoning set out in the originating application;

— Uphold the claim that the European Commission should pay interest on account of the delay in the actual payment of the interim sums applied for and improperly suspended;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the Commission’s decision to interrupt the payment deadline in respect of the interim payment application submitted by Spain on 18 December 2009. That interim payment application, for a total amount of EUR 37 320 854,12, relates to the Operational Programme for Community Assistance of the European Social Fund for Fighting Discrimination in the framework of the Objectives of Convergence and Regional Competitiveness and Employment in Spain (CCI 2007ES05UPO002).

The pleas in law and main arguments are the same as those already raised in Case T-263/10 Spain v Commission.
EN Official Journal of the European Union C 234/40

Action brought on 26 May 2010 — Rungis Express/HABM — Žito (MARESTO)

(Case T-243/10)

()

2010/C 234/73

Language in which the application was lodged: German

Parties

Applicant: RUNGIS Express AG (Meckenheim, Germany) (represented by: U. Feldmann, Rechtsanwalt)

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

Other party in the proceedings before the Board of Appeal: ŽITO prehrambena industrija, d.d. (Ljubljana, Slovenia)

Forms 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 11 March 2010 in Case R 691/2009-1;

— Dismiss the Defendant's opposition.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark MARESTO for goods in Class 29.

Proprietor of the marks cited in opposition: ŽITO prehrambena industrija, d.d.

Marks cited in opposition: National pictorial mark depicting a cook and including the word element M·A·E·S·T·R·O for goods in Classes 29 and 30, a national pictorial mark including the word element M•A•E•S•T•R•O for goods in Classes 29, 30 and 43, and the national word mark ‘BRAVO MAESTRO!’ for goods in Classes 29, 30 and 43.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1) (b), (c) and (d) of Regulation (EC) No 207/2009, (1) on the ground that the marks cited in opposition lacked distinctive character and/or were purely descriptive.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)
Official Journal of the European Union

Action brought on 23 July 2010 — Hartmann-Lamboy v OHIM — Diptyque (DYNIQUE)

(Case T-305/10)

()

(2010/C 288/80)

Language in which the application was lodged: German

Parties

Applicant: Marlies Hartmann-Lamboy (Westerburg, Germany) (represented by: R. Loos, 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: DIPTYQUE SAS (Paris, France)

Form of order sought

— Annul, in part, the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2010 in Case R 1217/2009-1 or amend it in so far as the applicant was unsuccessful;

— order the Office for Harmonisation in the Internal Market to pay the costs of the opposition proceedings, the appeal and the proceedings before the General Court.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark DYNIQUE for goods and services in classes 3, 41 and 44.

Proprietor of the mark or sign cited in the opposition proceedings: DIPTYQUE SAS

Mark or sign cited in opposition: Word mark DIPTYQUE for goods and services in classes 3, 4 and 35

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed in part.

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 at issue.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
EN Official Journal of the European Union C 260/18

Action brought on 14 July 2010 — In ‘t Veld v Commission

(Case T-301/10)

()

2010/C 260/25

Language of the case: English

Parties

Applicants: Sophie in t Veld (Brussels, Belgium), (represented by: O. Brouwer and J. Blockx, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Decision of the Commission of 4 May 2010, ref. SG.E.3/HP/psi-Ares (2010) 234950, to refuse full access to the applicant’s confirmatory request for access to documents; and

— Order the defendant to pay the costs of the proceedings, including the costs of any intervening parties.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Decision of the Commission of 4 May 2010 to refuse full access to documents concerning the negotiations of a new Anti-Counterfeiting Trade Agreement, requested by the applicant pursuant to Regulation (EC) No 1049/2001 (1).

In support of his action, the applicant submits the following pleas in law:

Firstly, the Commission’s Decision infringes Article 8(3) of Regulation No 1049/2001 as it impliedly refuses access to a number of documents requested by the applicant by failing to explain why access to these documents was refused.

Secondly, the decision in question is based on an erroneous application of Article 4(4) of Regulation No 1049/2001 as the Commission failed to treat Article 4(4) as a procedural rule regarding the consultation of third parties and in fact applied it as a further exception to the obligation to disclose documents.

Thirdly, the Commission’s Decision misapplied in law and in fact Article 4(1)(a), third indent, of Regulation No 1049/2001: — Firstly, as the general reasons provided by the Commission cannot in principle be covered by the exception for the protection of the public interest as regard the European Union’s international relations; — Secondly, as the Contested Decision contains manifest errors in its assessment of individual documents.

In addition, should the Court consider that any parts of the documents requested by the applicant are protected under Article 4(1)(a), third indent of Regulation No 1049/2001, the applicant submits that Article 4(6) has been wrongly applied, and the principle of proportionality breached, insofar as the Commission has failed to consider whether it was appropriate to grant partial access and to confine refusal to the parts of documents that were appropriate and strictly necessary.

Finally, the applicant also submits that the Commission did not fulfil its obligation to state reasons for the decision in question, thereby breaching Article 296 TFEU.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
Official Journal of the European Union

Action brought on 27 August 2010 — Adelholzener Alpenquellen v OHIM (Shape of a bottle with a relief-like depiction of three mountain summits)

(Case T-347/10)

()

(2010/C 288/96)

Language in which the application was lodged: German

Parties

Applicant: Adelholzener Alpenquellen GmbH (Siegsdorf, Germany) (represented by O. Rauscher, lawyer)

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

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 9 June 2010 in Case R 1516/2009-1;

— Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark in the shape of a bottle with a relief-like depiction of three mountain summits for goods in Class 32

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) of Regulation (EC) No 207/2009 (1) as the Community trade mark at issue has distinctive character; infringement of Article 37(2) of Regulation (EC) No 207/2009 as the Board of Appeal should not have based its decision on the absence of a disclaimer; and infringement of Article 75(2) of Regulation (EC) No 207/2009 as the applicant was unable to comment on certain depictions on which the decision was based

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
Official Journal of the European Union

Action brought on 23 August 2010 — Hartmann v OHMI — Mölnlycke Health Care (MESILETTE)

(Case T-342/10)

()

(2010/C 288/92)

Language in which the application was lodged: English

Parties

Applicant: Paul Hartmann AG (Heidenheim, Germany) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal: Mölnlycke Health Care AB (Göteborg, Sweden)

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 20 May 2010 in case R 1222/2009-2, and;

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

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘MESILETTE’, for goods in class 5 — Community trade mark application No 6494025

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

Mark or sign cited: German trade mark registration No 1033551 of the word mark ‘MEDINETTE’, for goods in class 25; International trade mark registration No 486204 of the word mark ‘MEDINETTE’, for goods in class 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal made an incorrect assessment of the likelihood of confusion, in particular of the similarity of the signs.