Case T-118/06: Action brought on  12 April 2006  — Zuffa v OHIM
Date: 2006-06-03
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 131/48

EN

Official Journal of the European Union

3.6.2006

Action brought on 14 April 2006 — GLOBE v Commis-
sion

(Case T-114/06)

(2006/C 131/88)

Language of the case: French

Parties

Applicant: GLOBE NV (Zandhoven, Belgium) (represented by: A.
Abate, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the European Commission decision contained in the
letter of 2 March 2006 from the Procurement Co-ordinator,
the EuropeAid Co-operation Office,
Directorate D/3 of
concerning
EuropeAid/122078/C/S/Multi,
entitled ‘Supply of a Pipeline Network Information System
to the Central Asia Gas companies (Kazakhstan, Kyrgystan,
Turkmenistan, Uzbekistan)’;

project

the

— Determine the Commission's non-contractual liability with
regard to the adoption of the decision referred to above;

— Order the Commission to pay compensation for the loss
caused to the applicant assessed at EUR 492 024,00 plus
interest for late payment from the date of the judgment's
publication;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant took part in the tendering procedure in respect
of the project EuropeAid/122078/C/S/Multi, entitled ‘Innova-
tion to tender for Supply of a Pipeline Network Information
System to the Central Asia Gas companies (Kazakhstan, Kyrgy-
stan, Turkmenistan, Uzbekistan)’, which is part of the TACIS
Programme 2002 (1). By letter of 2 March 2006, the Commis-
sion notified the applicant that its tender had been unsuccessful
because it was not the lowest and that the contract had been
awarded to a competing undertaking. In this action, the appli-
cant seeks annulment of the decision contained in that letter
and compensation for
to have
sustained as a result of the adoption of the contested decision.

the loss which it claims

The applicant relies on a number of pleas to dispute that deci-
sion.

First of all, it submits that in adopting the contested decision
the Commission made major errors of assessment and that it
contravened the Instructions to tenderers, rendering null and
tenderer.
void the award of
Under that plea,
the proposal
accepted by the Commission does not comply with the tech-
nical specifications in the contract documents. It also criticises
the Commission for extending the period for the submission of
tenders and for having asked the applicant's competitor to

the applicant contends that

to the successful

the contract

change its tender in the light of the Corrigendum to the tender
dossier, after the opening of tenders, which allowed the ulti-
mately successful tenderer to amend its tender so as to make it
the best offer. The applicant thus alleges a breach of the prin-
ciple of the protection of legitimate expectations in that its
proposal, the least expensive at the opening of tenders, was not
ultimately successful.

Secondly, the applicant claims that by omitting to notify it,
before taking the contested decision, of the grounds on which
it proposed to change the order of precedence of the tenders
set out at the public tender-opening session, the Commission
deprived the applicant of the possibility to submit its view and,
as a result, infringed its right to be heard.

The third plea put forward by the applicant relates to the
Commission's alleged breach of the duty to give reasons, those
provided being, according to the applicant,
insufficient and
contradictory.

By its fourth plea, the applicant alleges a breach of the principle
in its view, the
of sound administration of justice in that,
Commission demonstrated negligence in its late communica-
tion of the results of the tender selection procedure and in its
late replies to various letters from the applicant.

(1) Programme founded on Council Regulation (EC, Euratom) No
99/2000 of 29 December 1999 concerning the provision of assis-
tance to the partner States in Eastern Europe and Central Asia (OJ
2000 L 12, p. 1)

Action brought on 12 April 2006 — Zuffa v OHIM

(Case T-118/06)

(2006/C 131/89)

Language of the case: English

Parties

Applicant: Zuffa, LLC (Las Vegas, USA) (represented by: S. Maly-
nicz, Barrister, M. Blair, Solicitor)

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

Form of order sought

— The decision of the First Board of Appeal dated 30 January
2006 in Case R 931/2005-1 dismissing the appeal under
Articles 7(1)(b) and 7(1)(c) CTMR shall be annulled.

— The Office shall bear its own costs and pay those of the

applicant.

3.6.2006

EN

Official Journal of the European Union

C 131/49

Pleas in law and main arguments

— Assess the damage suffered by the applicant on an equitable

Community trade mark concerned: The word mark ‘ULTIMATE
FIGHTING CHAMPIONSHIP’ for goods and services in classes
9, 16, 25, 28 and 41 — application No 2 789 568

Decision of the examiner: Refusal of the application in respect of
all the goods and services applied for

Decision of the Board of Appeal: Annulment of the examiners
decision, rejection of the trade mark applied for pursuant to
Article 7(1)(b) and (c) of Council Regulation No 40/94 and
remission of the case to the examiner for further examination
pursuant to Article 7(3) of the Regulation

Pleas in law: The Board of Appeal erred in equating the words
ULTIMATE FIGHTING to the identification of the name of a
particular sport and in finding that their meaning was clear and
unequivocal. The Board of Appeal therefore erred in holding
the trade mark applied for descriptive and non-distinctive.

Action brought on 3 May 2006 — Centro Studi A. Manieri
v Council of the European Union

(Case T-125/06)

(2006/C 131/90)

Language of the case: Italian

Parties

Applicant(s): Centro Studi A. Manieri (Rome, Italy) (represented
by: Carlo Forte, Mario Forte and Giannicola Forte, lawyers)

Defendant(s): Council of the European Union

Form of order sought

— Annul the decision of the General Secretariat of the Council
of the European Union of 16 January 2006 to withdraw
the restricted invitation to tender UCA-459/03 for full
crèche management and, at the same time to accept the
proposal of the Office for infrastructure and logistics (OIB)
of the European Commission for the supply of the same
services;

basis:

— Order the Council to pay the costs.

Pleas in law and main arguments

This action has been brought against the decision of the Secre-
tary-General of the defendant to withdraw the invitation to
tender launched in the autumn of 2003 by contract notice
2003/S 209-187862 by restricted procedure for
the full
management of a crèche. The reason for the decision is alleged
to be the acceptance of a proposal by the Office for infrastruc-
the Commission regarding the
ture and logistics (OIB) of
management of the crèche in question. That proposal was
judged to be much more advantageous than the applicant's
tender, particularly as
the contractual conditions
offered to the staff, the economies of scale and the optimisation
of the available resources.

regards

In support of its claims the applicant relies on pleas of:

— Breach of the principles of transparency and equal treat-
ment,
in so far as the contested measure, a decision to
bring the service which was the subject of the procedure
under internal management, was adopted without being
advertised or opened up to competition.

— Breach of Article 86(1) EC in that it is inconceivable that
there should be a system which requires Member States not
to maintain in force a national system which allows the
award of contracts for public services without competition
while the Community institutions are allowed to conduct
themselves in such a manner.

— Misapplication of the provisions cited as the legal basis of
the contested decision: section 4 of the specification and
Article 101 of the Financial Regulation,
in so far as the
withdrawal of the invitation cited by the Council was not
intended to recommence the procedure.

— Breach of the obligation to state reasons and error of assess-
ment of the facts, as regards the correctness of the criteria
supporting the choice of the proposal of the OIB.

It

follows that

— Breach of Articles 43 and 49 EC. It is argued on this point
that the OIB is not a department of the Council and it does
not have any control over it.
is not
possible in the circumstances of this case to rely on the
case-law according to which the application of the public
procurement procedures is precluded if the control exer-
cised over the concessionaire by the concession-granting
public authority is similar to that which the authority exer-
cises over its own departments and if, at the same time,
that entity carries out the essential part of its activities with
the controlling authority.

it