Case T-316/06: Action brought on 9 November 2006 — Commission v Premium
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: EU financing, European Commission, appeal to the Court (EU), audit, contract, information technology, redemption, research and development

C 326/68

EN

Official Journal of the European Union

30.12.2006

Moreover, the applicant alleges that the Community institutions
violated Article 15(2) of the Basic Regulation (2) by failing to
consult the Advisory Committee on time on the exclusion of
three-door side-by-side refrigerators from the scope of
the
product concerned.

Finally, the applicant claims that the Community institutions
violated the Basic Regulation in their approach to defining the
product scope on the basis of physical characteristics without
regard to consumer perception.

(1) OJ 2006 L 236, p. 11.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ 1996 L 56, p. 1).

Mark or sign cited in opposition: Spanish word marks ‘CROS’,
Spanish word mark ‘SOCIEDAD ANONIMA CROS’, Spanish
figurative marks ‘CROS’ and Spanish word mark ‘ERCROS’ for
goods in Class 1.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since there is a likelihood of confusion between
the two 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 17 November 2006 — Ercros v OHIM
— Degussa (TAI CROS)

(Case T-315/06)

(2006/C 326/142)

Language in which the application was lodged: German

Action brought on 9 November 2006 — Commission v
Premium

(Case T-316/06)

(2006/C 326/143)

Language of the case: French

Parties

Applicant: Ercros, SA (Barcelona, Spain)
Thierie, lawyer)

(represented by: R.

Parties

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

Other party to the proceedings before the Board of Appeal of OHIM:
Degussa AG (Düsseldorf, Germany)

Form of order sought

The applicant claims that the Court should:

— ‘purely and simply’ alter the contested decision (decision of
the First Board of Appeal of OHIM of 20 September 2006
in appeal proceedings R 29/2006-1);

— grant the opposition and reject the application for figurative

mark No 2 768 851 ‘TAICROS’;

— order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Degussa AG.

Community trade mark concerned: The figurative mark ‘TAI CROS’
for goods in Class 1 (Application No 2 768 851).

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

Applicant: Commission of the European Communities (Brussels,
Belgium) (represented by: E. Montaguti, Agent, assisted by J.-L.
Fagnart and F. Longfils, lawyers)

Defendant: Premium SA

Form of order sought

— declare the application to be admissible and well founded,

and, in consequence:

— order Premium SA to pay

amount of
EUR 88 594,493, representing EUR 57 605,74 in respect of
the contract ISAR A 2052 and EUR 30 988,74 in respect of
the contract KAVAS-2 A2019;

a principal

— order Premium SA to pay the default interest due on the
amount of EUR 57 605,74 for the ISAR contract (at the
rate specified in the provisions of French law applicable to
the contract);

— order Premium SA to pay the default interest due on the
principal amount of EUR 30 988,74 for
the KAVAS-2
contract (at the rate specified in the provisions of Danish
law applicable to the contract);

— order Premium SA to pay the costs.

30.12.2006

EN

Official Journal of the European Union

C 326/69

Pleas in law and main arguments

The European Community,
represented by the European
Commission, entered into two contracts with a consortium on
11 March 1992 and 29 December 1993, respectively. One of
the members of that consortium was a company for which the
contracts
defendant was
concerned,
project
(‘Knowledge acquisition visualisation and assessment system’)
and the ISAR-AIM A2052 project (‘Integration System Architec-
ture’), carried out under a specific research and technological
development programme in the field of information technolo-
gies
by Council Decision
adopted
91/394/EC (1).

an associated contractor. Those
KAVAS-2 A2019

respectively,

1994)

(1990

the

to

The contracts set out the amounts of the eligible costs for the
projects on the basis of which the Community financial contri-
bution was calculated.
In accordance with the provisions of
those contracts, all payments made by the Commission were to
be regarded as advance payments pending approval in the final
report.
If the total financial contribution to be paid by the
Commission were to prove lower than the payments already
made, the contracting parties undertook to repay the difference
to the Commission without delay. The contracts also provided
that the contracting parties were jointly and severally liable for
any failure to meet contractual obligations, except where one of
them failed to submit financial information or provided finan-
cial information that was false or incomplete. In those cases, the
party concerned was to incur full liability.

Under the contracts, the consortium was required to submit
regular statements of expenditure, as well as regular reports on
the progress of the works.

The financial audit carried out by the Commission in 1996
disclosed several items of non-eligible expenditure invoiced by
Premium SA. In its comments on the audit report, the defen-
dant stated that it considered the report's rejection of a number
of costs to be unacceptable. Following an exchange of cor-
respondence with the defendant, the Commission issued debit
notes to Premium SA, which contested them. In so far as certain
advance payments taken into consideration by the Commission
in its first debit notes had not been transferred to Premium SA
by the coordinator, the Commission issued new debit notes
itemising the amounts actually overpaid, while maintaining its
position vis-à-vis the findings of the audit report regarding the
non-eligible expenditure invoiced by the defendant. The new
notes were also contested by Premium SA.

Several times the Commission presented requests for payment
again where earlier requests had elicited no reaction from the
defendant. As a consequence, on the basis of the arbitration
clauses contained in the contracts, the Commission has brought
the present proceedings claiming that the Court should order
Premium SA to reimburse part of the advance payment made
interest, on the
by the Community,
ground that the defendant has failed to substantiate by relevant
argument
the Commission's position
regarding the expenditure that the audit report found to be non-
eligible.

together with default

to accept

refusal

its

(1) OJ 1991 L 218, p. 22.

Action brought on 23 November 2006 — Panrico S.L. v
OHIM — HDN Development (‘Krispy Kreme DOUGH-
NUTS’)

(Case T-317/06)

(2006/C 326/144)

Language in which the application was lodged: Spanish

Parties

Applicant: Panrico S.L. (Unipersonal) (Santa Perpètua de Mogola,
Barcelona, Spain) (represented by: D. Pellisé Irquiza, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
HDN Development Corporation

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of
in Case R 0194/2005-1
8 August 2006 in the appeal
relating to opposition proceedings No B 303 992 which
refused Community trade mark application No 1 298 785;

— order the Office and HDN Development Corporation the
applicant for Community trade mark No 1 298 785 to pay
the costs.

Pleas in law and main arguments

Applicant
Corporation.

for a Community

trade mark: HDN Development

Community trade mark concerned: Figurative mark with the words
‘KRISPY KREME DOUGHNUTS’
(Application No 1 298 785)
for goods in Classes 25 and 30 and for services in Class 42.

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

Mark or sign cited in opposition: Spanish word marks ‘DOGH-
NUTS’ (No 1 288 926) and ‘DONUT’ (No 399 563) for goods
in Class 30 and the figurative mark ‘donuts’ for goods in Class
25 and services in Class 42.