Case T-14/06: Action brought on  16 January 2006  — K-Swiss/OHIM
Date: 2006-04-08
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, trade-mark law

8.4.2006

EN

Official Journal of the European Union

C 86/31

Action brought on 12 January 2006 — FAB Fernsehen aus
Berlin v Commission

compatible with the common market under Article 87(3)(c)
and (d) EC.

(Case T-8/06)

(2006/C 86/62)

Language of the case: German

Parties

Action brought on 16 January 2006 — K-Swiss/OHIM

(Case T-14/06)

(2006/C 86/63)

Applicant: FAB Fernsehen aus Berlin GmbH (Berlin, Germany)
(represented by: A. Böken, lawyer)

Language of the case: English

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

Parties

Applicant: K-Swiss (Westlake Village, USA) [represented by: H.
E. Hübner, lawyer]

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

— annul the decision of the Commission of the European
Communities (C(2005) 3903 final) of 9 November 2005
(State aid which the Federal Republic of Germany has
implemented for the introduction of digital terrestrial televi-
sion (DVB-T) in Berlin-Brandenburg).

Form of order sought

Pleas in law and main arguments

— order the OHIM to pay the costs.

— Annul the decision of the First Board of Appeal of the

OHIM of 26 September 2005 (Case R 1109/2004-1);

The applicant
is challenging Commission Decision C(2005)
3903 final of 9 November 2005 on the State aid for the intro-
duction of digital terrestrial television (DVB-T) in Berlin-Bran-
denburg. In the contested decision the Commission stated that
the aid granted to the commercial broadcasters participating in
DVB-T was
incompatible with the common market and
ordered the Federal Republic of Germany to recover from the
beneficiaries, and thus also from the applicant, the aid which
was unlawfully made available to them.

In support of its action the applicant submits that the subsidy
granted does not amount to State aid under Article 87(1) EC.
Furthermore, there is no aid, since the conditions laid down in
Article 86(2) EC are not met. The applicant also submits that
the measure in dispute does not affect trade between Member
States and, consequently, the contested decision is unlawful in
that respect.

In support of its action the applicant also submits that, if the
subsidy were to be regarded as aid within the meaning of
it would be compatible with the common
Article 87(1) EC,
market pursuant to Article 87(3) EC. In that regard, the appli-
cant alleges that the defendant exceeded the discretion which it
has when deciding whether a subsidy may be regarded as

Pleas in law and main arguments

Community trade mark concerned: A figurative mark representing
a shoe with five parallel stripes placed on the side for goods in
class 25 (shoes for men, women and children) — application
No 2 788 511

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the combination of
the characteristic
elements of the mark applied for is inherently capable of distin-
from those of others.
guishing the goods of the applicant
Breach of the principle of non-discrimination as the OHIM
allowed the registration of among others a figurative mark
representing a shoe with two parallel stripes placed on the
front of the shoe.