Case T-298/06: Action brought on 18 October 2006 — Agencja Wydawnicza Technopol v OHIM (1000)
Date: 2006-12-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 310/26

EN

Official Journal of the European Union

16.12.2006

— in the alternative, declare that on the date on which this
action is brought
there is no obligation on Poland to
recover the aid and interest referred to in Article 3 of the
decision and that the amounts of that aid and interest are
therefore not payable;

— in the further alternative, annul the second subparagraph of
Article 3(2) of the decision and refer the question of interest
back to the Commission for a fresh decision in accordance
with Annex A to this application or with such other consid-
eration as the Court may indicate in the grounds of its judg-
ment;

— in any event, order the Commission to pay all of the costs;

— if the Court should decide that there is no need to adjudi-
cate, order the Commission to pay the costs pursuant to
the combined provisions of Article 87(6) and Article 90(a)
of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

By its decision C (2005) 1962 final of 5 July 2005 (State Aid
No C 20/04, ex NN 25/04) the Commission declared certain
restructuring aid granted by Poland to the steel producer Huta
Częstochowa S.A. to be incompatible with the common market
and ordered its recovery. The applicant is one of the successors
to the aid beneficiary which, in the context of the restructuring
of Huta Częstochowa S.A., received certain assets and liabilities
from that company to be bought up subsequently by the
company Industrial Union of Donbass through its subsidiary
ISD Polska. The applicant is included in the contested decision
among the companies required jointly and severally to repay
the aid declared incompatible with the common market.

In support of its action for the partial annulment of the deci-
sion, the applicant relies on four pleas in law.

By its first plea, it claims that the Commission made a manifest
error of assessment of the facts decisive for the outcome of the
investigation. It maintains that, once the assets of the original
beneficiary of the incompatible aid are sold, those assets having
been bought by ISD Polska (and Donbass), it is the vendor of
the original aid beneficiary that retains the benefit of that aid
and must ensure that it is repaid. The applicant claims that in
this case, if the Commission had correctly established the rele-
vant facts concerning the sale of the assets of Huta Często-
chowa,
to ISD
through, among others, Majątek Hutniczy,
Polska (and Donbass), it would have come to the view that,
because the means of production of Huta Częstochowa were
acquired at a price reflecting the market price, restitution of the
aid would thereby already have been made to the vendor.
According to the applicant, the Commission was therefore in
breach of its obligation to examine, carefully and impartially,
all the relevant facts of the case.

By its second plea, the applicant claims that the Commission
infringed Protocol No 8 to the Treaty of Accession, on the
industry (1), by interpreting
restructuring of the Polish steel
purely literally certain of its provisions which, in the view of
the applicant,
it should have interpreted in the light of the
objectives pursued by that protocol and in consideration of the
background to its adoption. That allegedly incorrect interpreta-

tion led the Commission to require, by its decision, repayment
of State aid received before the adoption of Protocol No 8 by
companies not included in Annex 1, which designates eight
beneficiary companies which are eligible for aid from Poland in
derogation from Articles 87 EC and 88 EC. It also claims that,
as Protocol No 8 does not expressly state that it applies retroac-
tively for a specific period, the Commission's interpretation of
that protocol infringed several general principles such as those
of non-retroactivity and of legal certainty. The applicant claims
that Protocol No 8, on a correct
interpretation, does not
empower the Commission to call for the repayment of State
aid received before its adoption by companies not referred to
in Annex 1. It thus concludes that, having acted in that way
without a legal basis, the Commission encroached upon the
temporal competence of other Community institutions.

invoked as an alternative plea if the Court
The third plea,
should find that the Commission has properly established the
facts and correctly interpreted Protocol No 8, alleges infringe-
ment of Article 14(1) of Regulation No 659/1999 (2). The
applicant submits that, by adopting the decision to recover the
aid, the Commission is acting at variance with the principles of
equal treatment, legitimate expectations and legal certainty.

By its fourth plea, the applicant submits, in support of its alter-
native request for annulment of the second subparagraph of
Article 3(2) of the contested decision, that the Commission
infringed Regulation No 794/2004 (3) when calculating the
interest rate applicable to the recovery of the aid in the present
case.

(1) OJ 2003 L 236, p. 948.
(2) Council Regulation (EC) No 659/1999 of 22 March 1999, laying
down detailed rules for the application of Article 93 of the EC
Treaty, (OJ 1999 L 83, p.1).

(3) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple-
menting Council Regulation (EC) No 659/1999 laying down
detailed rules for the application of Article 93 of the EC Treaty, (OJ
L 140 of 30.4.2004, p. 1).

Action brought on 18 October 2006 — Agencja Wydaw-
nicza Technopol v OHIM (1000)

(Case T-298/06)

(2006/C 310/49)

Language of the case: English

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Często-
chowa, Poland) (represented by: V. von Bomhard, A. Renck and
T. Dolde, lawyers)

16.12.2006

EN

Official Journal of the European Union

C 310/27

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 7 August 2006 in case No R
447/2006-4; and

— order that the costs of the proceedings be borne by the

defendant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘1 000’ for goods
and services in classes 16, 28 and 41 — application No
4 372 264

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation
No 40/94 as numerals in principle, according to the applicant,
are not devoid of distinctive character and can function as an
indication of origin in the same way as words.

Violation of Article 7(1)(c) of the regulation as the trade mark
applied for is not descriptive since consumers confronted with
the trade mark ‘1 000’ on printed articles will not be able to
deduct any information about the characteristics of the goods
concerned.

Community trade mark concerned: the word mark ‘Promat’ for
goods and services in Classes 1, 2, 6, 17, 19, 20 and 42 (Appli-
cation No 803 825).

Proprietor of the mark or sign cited in the opposition proceedings:
Puertas Proma, S.A.L.

Mark or sign cited in opposition: in particular, the figurative mark
‘PROMA’ for goods and services in Classes 6, 20 and 39 (Com-
munity trade mark No 239 384), the opposition being directed
against the application in respect of Classes 6, 19 and 20.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: breach of Article 8(1)(a) and (b) of Regulation (EC)
No 40/94 (1), on the ground that neither the opposing signs
nor the opposing goods are similar. Therefore there is no likeli-
hood of confusion between the opposing marks.

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

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

Action brought on 6 November 2006 — Hartmann v
OHIM (E)

(Case T-302/06)

(2006/C 310/51)

Language of the case: German

Action brought on 4 September 2006 — Promat v OHIM
— Puertas Proma (Promat)

Parties

(Case T -300/06)

(2006/C 310/50)

Language in which the application was lodged: German

Parties

Applicant: Promat GmbH (Ratingen, Germany) (represented by:
J.Krenzel)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Puertas Proma, S.A.L.

Form of order sought

— amend the defendant's decision of 4 May 2006 (Ref. R

1058/2005-1) so as to allow the appeal in full;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Applicant: Paul Hartmann Aktiengesellschaft
Germany) (represented by K. Gründig-Schnelle, lawyer)

(Heidenheim,

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

Form of order sought

— annul the contested decision

— order the Office for Harmonisation in the Internal Market

to pay the costs of the proceedings

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘E’ for goods in
Classes 5, 10 and 25 — Application No 4 316 949

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 Regulation No
40/94.