Case T-149/06: Action brought on  17 May 2006  — Castellani v OHIM — Markant Handels und Service (CASTELLANI)
Date: 2006-07-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), alcoholic beverage, beverage industry, trade-mark law

29.7.2006

EN

Official Journal of the European Union

C 178/35

Second, the applicant invokes a breach of the agreement on
implementation of Article VI of GATT 1994 (2). According to
the applicant, its export price is not unreliable in the meaning
of Articles 2.1 and 2.3 of that agreement. In addition, the appli-
cant submits that the methodology used is incompatible with
Articles 2.1, 2.3 and 11 of
the agreement. The applicant
submits finally that Articles 2.1 and 2.3 of the agreement apply
equally to reviews carried out pursuant to Article 11 of the
agreement, such as the partial interim review at hand.

Finally, the applicant invokes a lack of legal basis for the meth-
odology applied to determine the applicant's export price to
the Community and a breach of the principle of legal certainty
by making it impossible for exporting producers to determine
their behaviour in the context of a price undertaking.

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ L 56, 1996, p. 1).

(2) Agreement on Implementation of Article VI of the General Agree-
- anti-

ment on Tariffs and Trade 1994 (WTO-GATT 1994)
dumping agreement (OJ L 336, 1994 , p. 103).

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'FRESHHH' for
goods in Classes 29, 30 and 32 (Application No 3 198 165).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: The mark applied for is registrable; no grounds for
refusal under Article 7(1)(b) and (c) or Article 7(2) of Regu-
lation (EC) No 40/94 (1) stand in the way of its registration.

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

Community trade mark (OJ L 11, 1994, p. 1).

Action brought on 19 May 2006 — En Route International
Limited v OHIM

Action brought on 17 May 2006 — Castellani v OHIM —
Markant Handels und Service (CASTELLANI)

(Case T-147/06)

(2006/C 178/64)

Language of the case: German

(Case T-149/06)

(2006/C 178/65)

Language in which the application was lodged: English

Parties

Parties

Applicant: Castellani SpA (Pontedera, Italy) (represented by: A.
Di Maso, M. R. Di Maso, lawyers)

Applicant: En Route International Limited (Berkshire, United
Kingdom) (represented by: W. W. Göpfert, lawyer)

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

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

Other party to the proceedings before the Board of Appeal: Markant
Handels und Service GmbH (Offemburg, Germany)

Form of order sought

The applicant claims that the Court should:

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 22 February 2006 in Case R
449/2005-1;

— annul the decision of the Fourth Board of Appeal of 7

March 2006 in Case R 352/2005-4;

— order OHIM to pay the costs.

C 178/36

EN

Official Journal of the European Union

29.7.2006

Pleas in law and main arguments

Form of order sought

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘CASTEL-
LANI’ for goods in class 33 (alcoholic beverages except beer,
liqueur, sparkling wine and Champagne) — application No 2
387 272

Proprietor of the mark or sign cited in the opposition proceedings:
MARKANT Handels- und Service GmbH

Mark or sign cited: The national word marks ‘CASTELLUM’ for
goods in class 33 (wines, with the exception of sparkling wine)
and ‘CASTELLUCA’ for goods in class 33 (wines)

— Declare the action admissible;

— declare the contested decision invalid to the extent the
Commission did not treat sales via ASMP consistently with
the treatment of those sales in the initial anti-dumping
investigation of silicon from Russia, and order the European
Commission to recalculate the dumping margin (and thus
the amount to be refunded) accordingly;

— order the Commission to pay the costs.

Decision of the Opposition Division: Rejection of the opposition
in its entirety

Pleas in law and main arguments

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the application

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
No 40/94 as the conflicting marks are different and the appli-
cant's mark can not cause confusion for German consumers.

Action brought on 9 June 2006 — Aluminium Silicon Mill
Products v Commission

(Case T-151/06)

(2006/C 178/66)

Language of the case: English

Council Regulation (EC) No 2229/2003 (1) imposed an anti-
dumping duty on imports of silicon to the Community from
two Russian exporting producers, related to the applicant: Sual-
Kremny-Urals LLC and ZAO Kremny. Because the applicant
believed that the dumping margin on the basis of which anti-
dumping duties were paid had been eliminated, it lodged three
requests for reimbursement of the duties with regard to subse-
quent imports.

In the contested decision, the requests were partially granted.
The applicant seeks the annulment of the decision to the extent
it reflects adjustment made without justification, with the result
that the calculated dumping margin is more than de minimis,
and does not authorize the national customs authorities to
grant the full reimbursement requested of anti-dumping duties
paid by the applicant on imports of silicon originating in
Russia.

In support of its application, the applicant invokes, first, a
manifest error of assessment and a breach of Council Regu-
lation No 384/96 (2) (the Basic Regulation), in particular Article
11(9), as well as a violation of the principle of legal certainty.
According to the applicant, the Commission erred in finding
that there were changed circumstances requiring it to depart
from the methodology relied on in the original investigation in
relation to sales made via the applicant.

Parties

Applicant: Aluminium Silicon Mill Products GmbH (Zug, Swit-
zerland) (represented by: L. Ruessmann, A. Willems, lawyers)

Defendant: Commission of the European Communities

Second, the applicant invokes a manifest error of assessment
and a breach of Article 253 EC with regard to the assessment
of the existence of a single economic entity as between the
applicant and the Russian factories and the adjustment for an
agent´s commission.