Case T-330/06: Action brought on 27 November 2006 — Novartis v OHIM (BLUE SOFT)
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 326/76

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 8 September 2006 (Case R 0394/2006-1);

— order the defendant to pay the costs.

Community trade mark concerned: The word mark ‘PNEUMO
UPDATE’ for goods and services in Classes 5, 9, 16, 35, 38 and
41 (Application No 2 462 049).

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceedings:
Avensa AG.

Community trade mark concerned: The word mark ‘E’ for goods in
Classes 7, 9 and 19 (application No 3 817 566)

Mark or sign cited in opposition: German word mark ‘Pneumo’ for
goods in Class 5, the opposition being brought only against the
registration in Class 5.

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Opposition Division: Opposition granted.

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

Pleas in law: The contested decision is not reasoned in a compre-
hensible manner and it infringes Article 8(1)(b) of Regulation
(EC) No 40/94 (1), since there is no likelihood of confusion
between the opposing marks. In addition, the applicant claims
that the opposing mark is not in use.

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

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1) as it was held that the mark for which registration
was sought lacked distinctive character and that its availability
had to be preserved.

(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 27 November 2006 — Novartis v
OHIM (BLUE SOFT)

Action brought on 27 November 2006 — Enercon GmbH
v OHIM

(Case T-329/06)

(2006/C 326/155)

Language of the case: German

Parties

(Case T-330/06)

(2006/C 326/156)

Language of the case: German

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by R.
Böhm, lawyer)

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

Form of order sought

Applicant: Novartis AG (Basel, Switzerland) (represented by N.
Hebeis, lawyer)

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

Form of order sought

The applicant claims that the Court should

— annul

the decision of

the First Board of Appeal of 14

September 2006 in Case R 270/2006-1;

— order the Office for Harmonisation in the Internal Market to

The applicant claims that the Court should:

pay the costs.

30.12.2006

EN

Official Journal of the European Union

C 326/77

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BLUE SOFT’ for
goods in Class 9 (application No 3 007 846)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: There is no absolute ground for refusal and there-
fore the mark for which registration is sought is capable of
being protected. The sign as a whole is not purely descriptive
and distinctive character is also present.

the applicant claims that

the EEA committed
Furthermore,
several manifest errors of assessment which resulted in the rejec-
tion of its bid.

The applicant requests that the decision of the EEA to reject its
to three other participants be
bid and award the contract
annulled and that the defendant is ordered by the Court to pay
all legal expenses related to the present proceedings even if the
application is rejected.

Action brought on 29 November 2006 — Alcoa Trasforma-
zioni v Commission

Action brought on 24 November 2006 — Evropaïki Dyna-
miki v EEA

(Case T-331/06)

(2006/C 326/157)

Language of the case: English

Parties

(Case T-332/06)

(2006/C 326/158)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: European Environment Agency

Form of order sought

— Annul the decision of the EEA to evaluate the applicant's bid
as not successful and award the contract to the successful
contractor;

— order the EEA to pay the applicant's legal and other costs
and expenses incurred in connection with this application,
even if the current application is rejected.

Pleas in law and main arguments

In support of its claims the applicant argues that in the decision
taken in the framework of the tendering procedure EEA/IDS/06/
002 for the ‘Provision of IT consultancy services’ (OJ 2006 S
118-125101) communicated to the applicant by letter dated 14
September 2006 the European Environmental Agency (‘EEA’)
failed to comply with its obligations foreseen in the Imple-
menting rules and Directive 2004/18/EC as well as the principle
of transparency by not disclosing to the participants in advance
the sub-criteria which were subsequently
the weighting of
applied during the selection procedure.

Applicant: Alcoa Trasformazioni Srl (Portoscuso, Italy), (repre-
sented by: M. Siragusa, T. Müller-Ibord, F. M. Salerno and T.
Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— To annul the Commission Decision of 19 July 2006 (1), in
so far as it relates to the applicant and the electricity tariffs
payable by the applicant at Portovesme and Fusina or, in the
alternative, to annul the decision to the extent that it treats
these tariffs as unlawful new aid;

— to order the Commission to bear the costs of the present

proceedings.

Pleas in law and main arguments

The application at stake is made pursuant to Article 230 EC for
the annulment of Commission Decision of 19 July 2006 (here-
inafter ‘the 2006 Decision’), which qualified electricity tariffs
applicable to the applicant's aluminium plants located in Porto-
vesme in Sardinia and Fusina in the Veneto region as unlawful
new aid and initiated formal proceedings against these tariffs
pursuant to Article 88(2)EC.

The applicant submits that the 2006 decision is erroneous and
unlawful in that it departs from the Commission's own previous
decision holding that the tariffs in question do not constitute
state aid and disregards the procedure that the Commission
should follow in such a case. More specifically, the applicant
raises three pleas in law: