Case T-294/06: Action brought on 20 October 2006 — Nordmilch v OHIM (Vitality)
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

16.12.2006

EN

Official Journal of the European Union

C 310/23

— Misconstruction of Articles 87 EC and 88 EC and of
Article 14 of Council Regulation (EC) No 659/1999 (2) by
reason of the mention of the claimant as a beneficiary of
the aid. The claimant submits that, by designating it as an
aid beneficiary, the Commission exceeded the limits of its
discretion inasmuch as the claimant does not belong to the
group of individuals which in fact benefited from the aid;

— Infringement of the principles of legal certainty and propor-
tionality by reason of the designation of the claimant as an
individual obligated to return the aid declared incompatible
with the common market, notwithstanding the fact that the
claimant was not a beneficiary of that aid.

(1) 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
2004 L 140, p. 1).

(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).

Action brought on 19 October 2006 — NBC Fourth
Realty v OHIM — Regalado Pareja and Pedrol (PK MAX)

(Case T-293/06)

(2006/C 310/44)

Language in which the application was lodged: English

Parties

Applicant: NBC Fourth Realty Corp. (Las Vegas, USA) (repre-
sented by: A. Woodgate, A. Smith, Solicitors)

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

Other parties to the proceedings before the Board of Appeal: Miguel
Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell
(Alicante, Spain)

Community trade mark concerned: The figurative Community
Trademark PK MAX, claiming the colour navy blue for goods
and services in classes 3, 25 and 28 in Case R 397/2005-1.

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

Mark or sign cited: The national word marks T.K. MAXX for
goods and services in class 35, the Community word mark T.K.
MAX, for goods and services in classes 3, 14, 18, 25, 28 and
35, as well as earlier non-registered national word marks of the
same denomination, used in the course of trade in Ireland, the
United Kingdom and the Netherlands.

Decision of
entirety.

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Appeal upheld and case remitted
to the Opposition Division for the remaining grounds of oppo-
sition.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94.

The applicant claims that the Board of Appeal erred in law, by
concluding there was no likelihood of confusion between the
In particular,
earlier and the contested mark.
the applicant
submits
incorrectly interpreted the
the Board of Appeal
‘consumer’ of the protected services while it manifestly erred in
the assessment of the visual, phonetic and conceptual similari-
ties between the respective trade marks. Moreover, the Board of
Appeal allegedly failed to correctly assess the scope of protec-
tion enjoyed by the earlier mark, as a result of its reputation
and/or inherent distinctiveness. Finally, the applicant submits
the Board has incorrectly introduced additional requirements
into the provisions of Article 8(1)(b) of Council Regulation No
40/94.

Action brought on 20 October 2006 — Nordmilch v
OHIM (Vitality)

(Case T-294/06)

(2006/C 310/45)

Language of the case: German

Form of order sought

— Annulment of the contested decision of the First Board of

Appeal, of 5 July 2006, in Case R 397/2005-1;

— order the Office for Harmonisation in the Internal Market
to pay the costs of this application and also the costs of the
proceedings before the Board of Appeal.

Parties

Pleas in law and main arguments

Applicant: Nordmilch eG (Zeven, Germany) (represented by R.
Schneider, lawyer)

Applicant for the Community trade mark: Miguel Isaias Regalado
Pareja and Bibiana Pedrol, trading as Rosell.

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

C 310/24

EN

Official Journal of the European Union

16.12.2006

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM
of 9 August 2006 in Case R 746/2004-4 in so far as it
dismisses the applicant's appeal

— order OHIM to bear its own costs and to pay the applicant's

costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Vitality’ for
goods and services in Classes 29, 30, 32, 33 and 43 (Appli-
cation No 2 835 684).

Decision of the Examiner: Partial refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The ground for denying the mark protection which
is given in Article 7(1)(b) of Regulation (EC) No 40/94 (1) does
not preclude registration as the mark for which registration is
sought makes it immediately possible for the relevant public to
recognise the origin of the goods protected by that mark and
to distinguish them from the goods of other enterprises.

(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 19 October 2006 — BASE v Commis-
sion

(Case T-295/06)

(2006/C 310/46)

Language of the case: French

Parties

Applicant: BASE NV (Brussels, Belgium)
Verheyden, Y. Desmedt and F. Bimont, lawyers)

(represented by: A.

Defendant: Commission of the European Communities

Form of order sought

— Declare that the Commission infringed the rules of proce-
dure set out in Article 7(4) of the Framework Directive (1)
by wrongly failing to open a detailed investigation proce-
dure into the draft regulatory measures that were communi-
cated to it by the Institut Belge des Services Postaux (IBPT);

— Declare that the Commission committed a number of mani-
fest errors of assessment in its analysis of the draft measures

communicated by the IBPT in finding, wrongly, that BASE
had significant power on the market for voice call termina-
tion on its own individual mobile network in Belgium;

— Declare that the Commission acted in breach of the general
principles and the fundamental objectives laid down in the
New Regulatory Framework by wrongly approving the
remedies proposed by the IBPT, when the imposition of
each one of those remedies was manifestly disproportionate
and excessive. In particular, the Commission infringed both
the general principles and the fundamental objectives laid
down in the New Regulatory Framework by postulating the
application of symmetrical termination charges in the short
term, without considering the concrete implications of this
symmetry for BASE, the third entrant on the market;

— Annul, for all of the reasons outlined above, the Commis-

sion decision in its entirety;

— Order the Commission to pay all of the costs.

Pleas in law and main arguments

the national

By the contested decision of 4 August 2006 (Case BE/
2006/0433), the Commission approved, at the end of the first
phase of enquiry prescribed in Article 7(3) of Directive
regulatory
2002/21/EC, a draft decision that
authority of Belgium, the IBPT, had communicated to it on 7
July 2006 concerning the wholesale market for call termination
on individual mobile networks in Belgium and under which the
IBPT had provisionally decided that each of the three mobile
network operators in Belgium,
including the applicant, had
significant market power on the wholesale market for voice call
termination on their
individual mobile networks, and to
impose on them, on that basis, certain obligations. The draft
decision communicated by the IBPT also contained a decision
to put in place a ‘glide path’ mechanism which aims gradually
to reduce the levels of termination charges of Belgian mobile
operators until 2008.

In support of its action for annulment, the applicant relies on
three pleas in law.

In its first plea,
the Commission
the applicant claims that
infringed the rules for the consultation procedure laid down in
Article 7 of Directive 2002/21/EC by wrongly failing to open a
detailed investigation procedure under Article 7(4) of
that
directive, when, according to the applicant, the draft measures
communicated by the IBPT could not, by reference to the
evidence and reasoning contained in the notification file, justify
the designation of the applicant as an operator having signifi-
cant power on the wholesale market for mobile call termina-
tion in Belgium.

In its second plea, the applicant claims that the Commission
made a number of manifest errors of assessment in its assess-
ment of the significant power held by the applicant on the
market for voice call termination in Belgium, as outlined by the
Belgian national authority.