Case T-201/06: Action brought on 1 August 2006 — Gerson v OHIM (Paint filter)
Date: 2006-09-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), brand name, hand tool, trade-mark law

16.9.2006

EN

Official Journal of the European Union

C 224/49

the applicant claims that

By its second plea in law,
the
Commission also made manifest errors of assessment of the
concept of State resources by deciding that
the system of
involve the transfer of State
compulsory orders does not
resources within the meaning of Article 87(1) EC.

The third plea in law relied upon by the applicant alleges
breach by the Commission of Article 87(3)(d) EC in that the
contested decision contains a manifest error of assessment of
the meaning of ‘aid to promote culture’.

Action brought on 26 July 2006 — IBERDROLA v
Commission of the European Communities

(Case T-200/06)

(2006/C 224/103)

Language of the case: Spanish

Parties

Applicant:
J. Alfaro Aguilar and P. Liñán Hernández, lawyers)

IBERDROLA S.A.

(Bilbao, Spain)

(represented by:

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision;

contrary to the Merger Regulation and the Community
case-law;

— failed to fulfil its obligation to ensure the coherent applica-
tion of the rules on the control of concentrations and the
abuse of a dominant position in examining the notified
transaction, authorising it without having examined the
origin of the funds which E.ON proposed to use for the
acquisition of ENDESA, in order to determine whether such
a concentration could be the result of an abuse of a domi-
nant position;

— made a series of manifest errors of assessment and ignored
certain relevant elements by concluding that the compat-
ibility of the transaction does not raise serious doubts and
adopting the decision authorising it in Phase 1. The appli-
cant emphasises
regard that, although it was
adopted on the basis of the new Merger Regulation, which
requires a more sophisticated and rigorous analysis, the
contested decision:

in that

— wholly ignores the negative impact which the transac-
tion will have on the process of the integration of the
national wholesale markets, which will culminate in the
completion of the single European market in gas and
electricity,

— did not sufficiently evaluate the impact of the proposed
transaction on the emergent pan-European market for
the supply of electricity to multinational undertakings,

— considers that,

in spite of its pan-European objective
and its economic strength, E.ON was not a significant
potential competitor of ENDESA in the Spanish markets
for electricity generation and the supply of gas,

— concludes that the transaction will not strengthen a
dominant position in the German market and that the
disappearance of a recent entrant, ENDESA, does not
alter the competitive context.

— Order the Commission to pay all the costs of the proceed-

ings.

Finally the applicant claims that there has been a breach of the
duty to state the reasons on which measures are based.

Pleas in law and main arguments

The present action is directed against the Decision of the Euro-
pean Commission of 25 April 2006 (Case No COMP/M.4110
— E.ON/ENDESA) declaring compatible with the common
market
the concentration whereby E.ON AG proposes to
acquire control of the whole of the shares in ENDESA SA.

The applicant claims in that regard that,
in its opinion, the
contested decision disregards the serious risks that coordinated
effects will be produced in the relations of competition
between the principal operators with a pan-European presence,
which must be examined in a transaction of this magnitude
and having these characteristics, that it affects the dominant
undertakings in two of the main national energy markets.

In support of its claims, the applicant maintains that the defen-
dant has:

— infringed the principle of sound administration by carrying
out a biased and inadequate investigation of the operation
of the affected markets and of the impact of the transaction
in those markets;

Action brought on 1 August 2006 — Gerson v OHIM
(Paint filter)

(Case T-201/06)

(2006/C 224/104)

Language of the case: English

Parties

Applicant: Louis M. Gerson Co., Inc (Middleboro, USA) (repre-
sented by: M. Edenborough, Barrister)

— made an error of law by basing its examination of the
the national markets,

transaction on a consideration of

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

C 224/50

EN

Official Journal of the European Union

16.9.2006

Form of order sought

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

— Annulment of

the decision of 15 May 2006 (Case R

1387/2005-2) of the Board of Appeal in its entirety;

— order the Office to pay the applicant the costs incurred in
connection with prosecuting this appeal before the Court of
First Instance.

Other party
Manpower Inc. (Milwaukee, USA)

to the proceedings before

the Board of Appeal:

Form of order sought

Pleas in law and main arguments

Community trade mark concerned: 3-dimensional mark consisting
of ‘the colour light yellow in the shade claimed, applied to the
mesh in the tip of a paint filter’ for goods and services in
classes 16 and 21— application No 3 969 367.

— That the decision of the OHIM Board of Appeal dated 18
May 2006 permitting the registration of application No
1 030 980 and dismissing opposition No B 303 158 be set
aside;

— that the application be refused; and

Decision of the examiner: Refusal of the application.

— that the appellant have its costs of the Appeal and below

before OHIM.

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

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation 40/94. The applicant claims that the Board of Appeal
made several factual errors of assessment and adopted at least
one error made by the Examination Division. Moreover, in the
appraisal of the available evidence the Board of Appeal alleg-
edly failed to do the appropriate balancing reaching, thus, a
wrong conclusion when considering Article 7(1)(b) of
the
above mentioned regulation.

The applicant finally contends that the application is distinctive
of one trade source and therefore does not offend Article
7(1)(b) of the regulation. In fact, the applicant claims the use of
colour would be noticed by the relevant public as being asso-
ciated with only the single trade source.

Pleas in law and main arguments

Applicant for the Community trade mark: Manpower Inc.

Community trade mark concerned: The word mark ‘TELESELECT’
for services in classes 35 and 41 (Assessment and training
services in the field of telephone call handling)

Proprietor of the mark or sign cited in the opposition proceedings:
Select Appointments (Holdings)

Mark or sign cited: The Community word mark ‘SELECT’ for
services in classes 35 and 41 — application No 2 111 367
(employment agency, consultancy, information on job opportu-
nities, advertising and personnel management services)

Decision of
entirety

the Opposition Division: Opposition upheld in its

Action brought on 31 July 2006 — Select Appointments v
OHIM — Manpower (TELESELECT)

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

(Case T-202/06)

(2006/C 224/105)

Language in which the application was lodged: English

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as, according to the applicant, the likelihood
of confusion even in parts of the European Community justi-
fied the refusal of registration of the contested mark. Consid-
ering the average consumers do not necessarily speak English,
the word mark would not have any significant meaning to
them, as regards the part ‘SELECT’.

Parties

Applicant: Select Appointments (Holdings) Ltd.
(St Albans,
United Kingdom) (represented by: G.R. Fernando, Barrister, C.J.
Leech, Solicitor)

the

applicant

Moreover,
services
claims
provided by the contested mark are encompassed by the wider
employment agency services covered by its own Community
trade mark.

assessment

that