Case T-304/05: Action brought on 4 August 2005 — Cain Cellars v OHIM
Date: 2005-10-15
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law, wine

15.10.2005

EN

Official Journal of the European Union

C 257/15

Pleas in law and main arguments

The applicant in this case is a company controlled by Electrabel
SA and ACEA. More precisely, it was one of three operating
companies controlled by the hodling company ACEA Electrabel
Holding SpA, a joint venture company created by Electrabel
and ACEA in order to operate in the field of gas and electric
energy.

The action concerns the decision of 16 March 2005 by which
the Commission concluded the proceedings brought under
Article 88(2) EC for the purpose of examining the compatibility
with Community law of the funding granted by the Regione
Lazion for the extension of a distance heating system in the
district of Torrino-Mezzocammino, near Rome (State aid No C-
35/03 — ex NN 90/2002).

The applicant requests the Court of First Instance of the Euro-
pean Communities to declare the decision null in so far as it
classifies as State aid measures to fund the construction of a
distance heating network in the district of Torrino-Mezzocam-
mino, and in that it suspends the grant of aid until Italy has
supplied evidence of repayment by ACEA of the aid declared
unlawful and incompatible with Decision 2003/193/EC of 5
June 2002 on tax relief for ex-municipal undertakings (‘the Tax
Relief Decision’).

measures
together with the new measures) which,
according to the principles to be drawn from that judg-
ment, must be present if grant of the measure/aid? is to be
suspended.

(1) Judgment in Joined Cases T-244/93 and T-486/93 TWD v Commis-
sion [1995] ECR II-2265, upheld by judgment of the Court of
Justice in Case C-355/95 [1997] ECR I-2549.

Action brought on 4 August 2005 — Cain Cellars v OHIM

(Case T-304/05)

(2005/C 257/29)

Language in which the application was lodged: German

Parties:

Applicant: Cain Cellars, Inc. (St. Helena, United States) (repre-
sented by: W.-W. Wodrich, lawyer, and J.K.F. Albrecht, lawyer)

The action is based in particular on the following main
grounds:

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

(a) the measure in question does not constitute State aid, inas-
much as it is not capable of affecting competition, and does
not on any view cause any damage to intra-Community
trade. In point of fact, it exhausts its effects at local level,
being intended to subsidise a project (the construction of a
heating system in a quarter near Rome) that is to benefit a
limited number of users in a restricted area of Italian terri-
tory, in fact, merely an overspill area for a large town;

(b) the recipient (i.e. the applicant) of that measure is not the
same as the beneficiary of the aid that is the subject-matter
of the Tax Relief Decision (i.e. ACEA), nor does it constitute
a single economic entity with the latter, so that the order
for suspension of the grant of aid appears quite unjustified;

(c) even leaving aside the error in the identification of the reci-
pient and even if ACEA were, quod non, to be considered to
be the actual recipient of the aid in question, application of
the judgment in Deggendorf (1) would seem to be without
bearing on the circumstances of this case. Specifically, the
Commission has not demonstrated that
there are any
grounds (in particular, the cumulative effect of the previous

Form of order sought:

The applicant claims that the Court should:

— annul the decision of the defendant (First Board of Appeal)

of 23 May 2005 in Case R 0975/2004-1;

— order the defendant to pay the costs.

Pleas in law and main arguments:

Community trade mark concerned: The figurative mark in the form
of a pentagon for ‘Wine’ goods in Class 33 — Application No
3 425 121

Decision of the Examiner: Rejection of the application

Decision of
appeal

the Board of Appeal: Dismissal of the applicant's

C 257/16

EN

Official Journal of the European Union

15.10.2005

Pleas in law: It is irrelevant from a legal viewpoint that the mark
applied for is a geometric figure, since in respect of the role of
trade marks and their capability of working as company signs,
only the assessment of the average consumer who is reasonably
well
informed and reasonably observant and circumspect is
relevant. The defendant has breached that principle of assess-
ment in the contested decision. The figure in the form of a
pentagon is unusual and striking and therefore has distinctive
character and indicates the company origin. Article 7(1)(b) of
Regulation (EC) No 40/94 of 20 December 1993 on the Com-
munity trade mark does not thereby preclude registration of
the mark of the applicant for which protection is sought.

Action brought on 10 August 2005 — Italian Republic/
Commission of the European Communities

(Case T-308/05)

(2005/C 257/30)

Language of the case: Italian

Parties:

in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul memorandum No 05728 of 17 June 2005 of the
the European
Regional Policy Directorate General of
in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul memorandum No 05952 of 17 June 2005 of the
Regional Policy Directorate General of
the European
Commission — Programmes and projects
in Cyprus,
Italy, Malta and the Netherlands —
Greece, Hungary,
concerning POR Apulia 2005-2006 (No CCI 1999 IT 16
PO 009) — Payment from the Commission different from
the amount requested;

— annul all related and prior measures; and

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments are the same as those
relied on in Case T-345/04 Italian Republic v Commission. (1)

Applicant: Italian Republic (represented by: Antonio Cingolo,
Avvocato dello Stato)

(1) OJ C 262 of 23.10.2004, p. 55.

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

— annul memorandum No 05272 of 7 June 2005 of the
the European
Regional Policy Directorate General of
Commission — Programmes and projects
in Cyprus,
Greece, Hungary, Italy, Malta and the Netherlands — Italy
and Malta — concerning POR Campania Ob. 1 — 2005-
2006 (No CCI 1999 IT 16 1 PO 007) — Declaration of
interim expenditure and request for payment;

— annul memorandum No 05453 of 8 June 2005 of the
the European
Regional Policy Directorate General of
in Cyprus,
Commission — Programmes and projects
Greece, Hungary,
Italy, Malta and the Netherlands —
concerning DOCUP Ob. 2 — Latium 2005-2006 (No CCI
2000 IT 16 2 DO 009) — Payment from the Commission
different from the amount requested;

Action brought on 10 August 2005 — Microsoft/Commis-
sion

(Case T-313/05)

(2005/C 257/31)

Language of the case: English

Parties:

Applicant(s): Microsoft Corporation (Washington, USA) [repre-
sented by: J.-F. Bellis, lawyer, I. Forrester, QC]

— annul memorandum No 05726 of 17 June 2005 of the
the European

Regional Policy Directorate General of

Defendant(s): Commission of the European Communities