ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 204/27

Action brought on 10 May 2011 — Sanco v OHIM — Marsalman (Representation of a chicken)

(Case T-249/11)

2011/C 204/49

Language in which the application was lodged: Spanish

Parties

Applicant: Sanco SA (Barcelona, Spain) (represented by: A. Segura Roda, lawyer)

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

Other party to the proceedings before the Board of Appeal: Marsalman SL (Barcelona, Spain)

Form of order sought

The applicant claims that the General Court should:

— Hold that the action brought against the Decision of the Second Board of Appeal of OHIM dated 17 February 2011 in Case R 1073/2010-2 is brought in time and in the prescribed manner, and in due course annul that decision, refuse registration of the Community mark No 6.675.383 for all its Classes and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Marsalman SL

Community trade mark concerned: Figurative mark without text containing the graphic representation of a chicken framed in a semicircle (application for registration No 6.675.383) for goods in Class 29 and services in Classes 35 and 39.

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

Mark or sign cited in opposition: Spanish mark without text containing the graphic representation of a chicken framed in an oval (No 2.727.182) for goods in Classes 29 and 31.

Decision of the Opposition Division: Partial upholding of the opposition.

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

Pleas in law: Incorrect application and interpretation of Article 8(1)(b) of Regulation No 207/2009.
EN Official Journal of the European Union C 232/35

Action brought on 7 June 2011 — Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METROINVEST)

(Case T-284/11)

2011/C 232/61

Language in which the application was lodged: English

Parties

Applicant: Metropolis Inmobiliarias y Restauraciones, SL (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

Form of order sought

— Modify the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1, and grant the Community trade mark application for the word mark ‘METROINVEST’;

— Subordinately, and only in the case the former claim would be rejected, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 March 2011 in case R 954/2010-1;

— Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘METROINVEST’, for services in class 36 — Community trade mark application No 7112113

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: German trade mark registration No 30348717, of the figurative mark ‘METRO’, in blue and yellow, for a range of goods and services in classes 1 to 45; Community trade mark application No 779116, of the figurative mark ‘METRO’, in yellow, for a range of goods and services in classes 1 to 42

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 6 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, related to the right to fair trial and the prohibition of any discrimination and to Community law general principle of equal treatment. Infringement by the Board of Appeal of Article 8(1)(b) of Council Regulation No 207/2009, because of the lack of confusion risk between both conflicting trademarks.
EN Official Journal of the European Union C 238/18

Action brought on 13 May 2011 — FairWild Foundation v OHIM — Wild (FAIRWILD)

(Case T-247/11)

2011/C 238/33

Language in which the application was lodged: German

Parties

Applicant: FairWild Foundation (Weinfelden, Switzerland) (represented by: P. Neuwald and S. Müller, lawyers)

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

Other party to the proceedings before the Board of Appeal: Rudolf Wild GmbH & Co. KG (Eppelheim, 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 March 2011 in the appeal proceedings in Case R 1014/2010-1;

— reject the opposition to registration of international mark No 950 962‘FAIRWILD’;

— order the defendant and the opponent to pay the applicant’s costs of the proceedings, including the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: FairWild Foundation.

Community trade mark concerned: Word mark ‘FAIRWILD’ for goods in classes 3, 5, 29 and 30 — international registration No 950 962.

Proprietor of the mark or sign cited in the opposition proceedings: Rudolf Wild GmbH & Co. KG.

Mark or sign cited in opposition: Community word mark ‘WILD’ for goods in classes 3, 9, 29, 30 and 32.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Decision of the Opposition Division annulled in part.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009, as the Board of Appeal erroneously assumed that there was a likelihood of confusion between the opposing marks. The applicant complains that the Board of Appeal (i) wrongly assumed that the meaning of the sign ‘WILD’ is familiar only to the German and English-speaking public, and (ii) proceeded on the assumption that the term is not descriptive of the goods covered by the mark cited in opposition. On that basis, the Board of Appeal erred in law in ascribing average distinctiveness to the mark cited in opposition and in finding an average degree of similarity between the signs, as a result of which the assessment of the interrelated aspects of the likelihood of confusion had an unfavourable outcome as far as the applicant was concerned.
2.

Second plea in law: the time limit within which to reply was too short and the Commission refused to extend that time limit The information decision concerns a vast amount of detailed information on 15 group companies (such as transaction data, imports and exports, production data, market shares etc) over a period of 10 years. On the basis of the draft decision, thus at an early stage, the applicants gave the Commission detailed reasons why the 12-week time limit to provide the requested information was clearly too short. Given that the proceedings had already been underway for two and a half years and the applicants had already cooperated extensively with the Commission it was appropriate to extend the time limit. Moreover, the Commission itself delayed the data collection and made it more difficult by drafting the information decision in German, in spite of the applicants' consent to continue using English as the language of the case, thereby making it impossible for two thirds of the Holcim group companies to work with it.
EN Official Journal of the European Union C 252/36

Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle)

(Case T-323/11)

2011/C 252/82

Language of the case: Spanish

Parties

Applicant: Unión de Cervecerías Peruanas Backus y Johnston SAA (Lima, Peru) (represented by E. Armijo Chávarri, lawyer)

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

Form of order sought

— Declare the action against the Decision of the Second Board of Appeal of the Office of 23 March 2011 in Case R 2238/2010-2 to be brought in due form and time, and

— Following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark consisting in the shape of a bottle (application No 8.592.081) for goods in Class 32 (‘beer’)

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.
EN Official Journal of the European Union C 238/32

Action brought on 16 June 2011 — Heede v OHIM (Matrix-Energetics)

(Case T-313/11)

2011/C 238/54

Language of the case: German

Parties

Applicant: Günter Heede (Walldorf-Baden, Germany) (represented by R. Utz, 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 8 April 2011 in Case R 1848/2010-4;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Matrix-Energetics’ for services in Classes 35, 41 and 44 — application No 8 339 798

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 Regulation No 207/2009 as the descriptive character of the mark applied for cannot be determined and the mark applied for has the necessary distinctive character; the Board of Appeal erred in making print-outs from the internet, which dated from after the date of filing of the application for registration, the subject-matter of its decision; and furthermore isolated, illegal instances of use of an originally distinctive (fanciful) description on the part of third parties, which commenced after the date of filing, cannot have a negative influence on the registrability of a Community trade mark.
EN Official Journal of the European Union C 269/51

Action brought on 24 June 2011 — Wessang v OHIM — Greinwald (star foods)

(Case T-333/11)

2011/C 269/114

Language in which the application was lodged: French

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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

Other party to the proceedings before the Board of Appeal: Greinwald GmbH (Kempten, Germany)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of 15 April 2011;

— Declare and hold that OHIM is to adopt the measures required to comply with the present judgment annulling the abovementioned decision and therefore uphold the opposition brought by Mr Nicolas Wessang on 26 September 2005 against the application for registration of the mark STAR FOODS + design No 4 105 615;

— Order Greinwald GmbH and OHIM jointly and severally, and in solidum, to pay all the costs and expenses incurred by Mr Nicolas Wessang in the opposition proceedings, the appeal proceedings and the present proceedings;

— Order Greinwald GmbH to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings;

— Order OHIM to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Greinwald GmbH.

Community trade mark concerned: Figurative mark ‘star foods’ for goods in Classes 29, 30 and 32 — application for registration No 4 105 615.

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

Mark or sign cited in opposition: Community figurative and word marks ‘STAR SNACKS’ for goods in Classes 29, 30 and 31.

Decision of the Opposition Division: Upholding the opposition.

Decision of the Board of Appeal: Rejection of the opposition; decision taken following the judgment of the General Court of 11 May 2010 in Case T-492/08 Wessang v OHIM — Greinwald (star foods).

Pleas in law: The applicant submits that the General Court held that there was a likelihood of confusion between the two marks at issue and that, therefore, the Board of Appeal had limited powers following the judgment of the General Court. The applicant thus submits that the Board of Appeal exceeded its powers in re-trying the matter in its entirety.
EN Official Journal of the European Union C 252/39

Action brought on 30 June 2011 — Getty Images v OHIM (PHOTOS.COM)

(Case T-338/11)

2011/C 252/87

Language of the case: English

Parties

Applicant: Getty Images (US), Inc. (Seattle, United States) (represented by: P.G. Olson, 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 1831/2010-2; and

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PHOTOS.COM’ for goods and services in classes 9, 42 and 45 — Community trade mark application No 8549991

Decision of the Examiner: Partially refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 7(3) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly found that the mark applied for describes the goods/services for which registration was sought; (ii) erred by disregarding the fact that the applicant’s domain name registration corresponds to the mark applied for and has an effect on the assessment of the mark’s distinctive character; and (iii) wrongly assessed that the documentation was insufficient to document that the mark had acquired distinctiveness and based its decision on misunderstanding and misconception of the evidence presented. Infringement of the principles of equal treatment and legitimate expectation, as the Board of Appeal wrongly rejected the importance of the fact that OHIM has accepted the applicant’s trademark ‘PHOTOS.COM’ for similar goods and services in a prior application.
1.

First ground, alleging that the Civil Service Tribunal erred in holding that the claim for compensation for the non-material damage suffered by the appellant, Alessandro Missir and his heirs was inadmissible. In support of that ground, the appellant submits, first, that the Civil Service Tribunal applied in an illogical, incorrect and discriminatory manner what is known as the rule on consistency, which requires identity of cause and subject-matter solely between the complaint submitted under Article 90(2) of the Staff Regulations and the appeal lodged under Article 91 of those regulations, not between the request under Article 90(1) and the complaint under Article 90(2). Second, the appellant submits that the Civil Service Tribunal’s interpretation of the rule on consistency gives rise to a limitation on the exercise of the fundamental right to effective judicial protection, enshrined, inter alia, in Article 47 of the Charter of Fundamental Rights of the European Union.
EN Official Journal of the European Union C 269/54

Action brought on 15 July 2011 — Basic v OHIM — Repsol YPF (basic)

(Case T-372/11)

2011/C 269/120

Language in which the application was lodged: English

Parties

Applicant: Basic Aktiengesellschaft Lebensmittelhandel (Munich, Germany) (represented by: D. Altenburg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Repsol YPF, SA (Madrid, 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 31 March 2011 in case R 1440/2010-1;

— Dismiss the appeal in case No R 1440/2010-1 regarding ruling on opposition No B 1384694

— Order the defendant to pay the costs of this proceeding.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘basic’, in yellow, blue and red, for goods and services in classes 3, 4, 5, 16, 18, 21, 25, 28, 29, 30, 31, 32, 33, 35, 39, 43, 44 and 45 — Community trade mark application No 6752811

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 5648159 of the figurative mark ‘BASIC’, for services in classes 35, 37 and 39

Decision of the Opposition Division: Upheld the opposition for part of the contested services in class 35 and all the contested services in class 39. The opposition was rejected for the remaining services in class 35

Decision of the Board of Appeal: Annulled the decision of the Opposition Division to the extent it rejected the opposition for part of the services in class 35. Rejected the CTM application for these services and dismissed the appeal for the remaining services in class 35

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed the existence of a likelihood of confusion between the applied mark and the opposed mark.
2.

Second plea in law, alleging an infringement of the principle of the protection of legitimate expectations and the duty to state reasons in relation to the principle of the protection of legitimate expectations. — This plea in law is divided into two parts, which both relate to the period during which the applicant was entitled to entertain legitimate expectations, established in Article 1(2) and (3) of the contested decision: — First part of the second plea: primarily, infringement of the principle of the protection of legitimate expectations. The applicant submits that that principle should protect all the beneficiaries from recuperation of the aid until the date of publication of the contested decision, since the publication of the decision to initiate proceedings is not sufficient to thwart the legitimate expectations born from the Commission's statements before the European Parliament. — Second part of the second plea: in the alternative, infringement of the principle of the protection of legitimate expectations and of the duty to state reasons. The applicant considers that the European Commission was wrong to exclude from the period during which it was entitled to entertain legitimate expectations the whole of the day of publication in the Official Journal of the European Union of the decision to initiate proceedings which led to the adoption of the contested decision. First, in accordance with Community law, the final day of a specified period should be included in that period in full and, second, the exclusion of the final day of that period, in the operative part of the contested decision, is inconsistent with the grounds for the decision.
2.

Second plea in law, alleging that the Commission exceeded the limits of the powers conferred upon it by Article 9 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1)
2.

Second plea in law, alleging that the defendant infringed the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as: — at no time it provided for the communication of detailed reasons for the inclusion of the applicant in the lists of persons subject to the restrictive measures; and — it did not provide the applicant with the possibility to effectively exercise its rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing it to effectively request its removal from the lists of persons covered by the restrictive measures.
EN Official Journal of the European Union C 290/17

Action brought on 5 August 2011 — Evropaïki Dynamiki v Commission

(Case T-442/11)

2011/C 290/25

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission

Form of order sought

— Annul the Decision of the Commission of 27 May 2011, not to take any remedial action after the European Ombudsman came to the conclusion that the Decision taken by the Commission in November 2006, to select the products and services of a third company, was not in conformity with the applicable EU public procurement legislation;

— Order the Commission to pay the applicant’s damages in order to neutralise the impact it suffered on account of its decision of November 2006;

— Order the Commission to pay the applicant 1 million EURO for a loss of opportunity to participate in the call for tenders which it decided to cancel;

— Order the Commission to pay the applicant 1 million EURO for an authorised use of intellectual property rights;

— Order the Commission to pay the applicant the amount of 10 million EURO for a non-pecuniary loss, consisting of its reputation and credibility being undermined;

— Order the Commission to issue a public notice, informing the market and all users interested in CIRCA (an IT tool which enables the electronic collaboration among employees or groups of individuals located in different locations), that such is not an obsolete platform, that the platform developed by Alfresco Software Ltd. is not a privileged platform and that the users are free to select as a substitute for CIRCA the platform of their choice; and

— Order the Commission to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

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 that the Commission infringed the obligation arising from Articles 27, 88, 89 and 91 of the financial regulation (1), as well as of Articles 116, 122 and 124 of the implementing rules (2), to conduct an open or restricted call for tenders.

2. Second plea in law, alleging that the Commission infringed the principles of non discrimination and equal treatment.

3. Third plea in law, alleging that the Commission infringed the principle of good administration and the obligation to state reasons.

4. Fourth plea in law, alleging that the Commission misused its powers.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)