Case T-37/06: Action brought on  7 February 2006  — MEGGLE Aktiengesellschaft v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 96/16

EN

Official Journal of the European Union

22.4.2006

Form of order sought

The applicant claims that the Court should:

Action brought on 7 February 2006 — MEGGLE Aktienge-
sellschaft v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

— annul

the defendant's decision of 6 September 2005
in Case N 248/04 — Landesbank

[C(2005)3232 Final]
Hessen-Thüringen;

— order the defendant to pay costs.

(Case T-37/06)

(2006/C 96/31)

Language of the case: German

Pleas in law and main arguments

Parties

The applicant challenges Commission Decision C(2005)3232
Final of 6 September 2005, in which the Commission deter-
mined that the notified transfer of the special Hessian Invest-
ment Fund as silent partnership participation to Landesbank
Hessen-Thüringen (‘Helaba’) does not constitute state aid.

Applicant: MEGGLE Aktiengesellschaft
Germany) (represented by: T. Rabb, lawyer)

(Wasserburg a.

Inn,

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

In support of its application, the applicant advances four pleas.

Other party to the proceedings before the Board of Appeal:
Clover Corporation Limited (North Sydney, Australia)

First, the applicant contends that the Commission has breached
the duty to state reasons under Article 253 EC.

Form of order sought

Second, the applicant supports its claim in contending that the
defendant, by confirming the appropriateness of the agreed
remuneration for the transfer to Helaba, has breached the prin-
ciple of a private investor in a market economy and, thereby,
Article 87(1) EC.

further claims that

the Commission wrongly
The applicant
deducted the refinancing costs because of the lack of liquidity
of the transfer to Helaba. The applicant contends that, for this
reason, the Commission has breached the principle of a private
investor in a market economy and, thereby, Article 87(1) EC.

Finally, the applicant submits that the right to a fair hearing
has been infringed, on the ground that the Commission failed
to open a formal investigation procedure under Article 88(2)
EC and Article 6 of Regulation (EC) No 659/1999 in respect of
the transfer to Helaba (1).

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty.

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 22 November 2005 and the opposi-
tion decision of the Opposition Division of the Office with
competence for trade marks of 30 September 2004;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant
Limited

for Community trade mark: Clover Corporation

Community trade mark sought: Figurative mark ‘HiQ with clover-
leaf’ for goods in Classes 5, 29 and 30 (No 2 171 114)

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

Mark or sign cited in opposition: the German figurative mark
‘Cloverleaf’ for goods in Classes 1, 3, 5, 29, 30, 31, 32 and 33
(No 980 458) and the German figurative mark ‘Cloverleaf’ for
goods in Classes 1, 3, 5, 29, 30, 31, 32, 33 (No 39 652 600)

22.4.2006

EN

Official Journal of the European Union

C 96/17

Decision of the Opposition Division: Rejection of the opposi-
tion

Pleas in law and main arguments

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Article 8(1)(b) of Regulation (EC) No 40/94 (1) has
been incorrectly applied, on the ground that there exists a like-
lihood of confusion between the opposing marks. The marks
show a high degree of similarity and the earlier mark has par-
ticular distinctive character. Article 74(1) of Regulation No 40/
94 has been breached, on the ground that the defendant Office
is in breach of its duty to examine the facts before it.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark.

The pleas in law and main arguments relied on by the applicant
are identical to those relied on in Case T-26/06 Trioplast Witten-
heim v Commission.

Action brought on 6 February 2006 — Republic of Poland
v Commission of the European Communities

(Case T-41/06)

(2006/C 96/33)

Language of the case: Polish

Action brought on 9 February 2006 — Trioplast Industrier
v Commission

(Case T-40/06)

Parties

(2006/C 96/32)

Language of the case: Swedish

Applicant: Republic of Poland (represented by: Paweł Szała-
macha, Government Agent)

Defendant: Commission of the European Communities

Parties

Form of order sought

Applicant: Trioplast
(represented by: Tommy Pettersson, lawyer)

Industrier AB (Smålandsstenar, Sweden)

The applicant claims that the Court should:

Defendant: Commission of the European Communities

Form of order sought

— declare invalid the decision of 18 October 2005 in Case
COMP/M.3894 establishing that the merger of Unicredito
Italiano SpA and Bayerische Hypo- und Vereinsbank AG is
compatible with the common market;

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

The applicant claims that the Court should:

Pleas in law and main arguments

— partially annul Article 1(g) of the decision in relation to the
period during which the applicant is held liable for the
infringement;

— partially annul Article 2(f) of the decision in relation to the
fine imposed which the applicant is jointly liable to pay; in
the alternative, reduce the fine;

— order the Commission to pay the costs.

The applicant seeks a declaration that the decision of the Euro-
pean Commission of 18 October 2005 in case COMP/M.3894
recognising the merger of the banks Unicredito Italiano SpA
(UCI) and Bayerische Hypo- und Vereinsbank AG (HVB) as
being compatible with the common market is invalid. Each of
those banks has holdings in banking institutions in Poland and,
according to the assertions made by the applicant, the effect of
the proposed concentration will be the assumption of control
by UCI over HBV's holding within the Polish banking market.