Case T-325/06: Action brought on 24 November 2006 — Boston Scientific v OHIM — Terumo (CAPIO)
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 326/74

EN

Official Journal of the European Union

30.12.2006

Pleas in law and main arguments

Action brought on 24 November 2006 — Boston Scientific
v OHIM — Terumo (CAPIO)

This action seeks annulment of the contested decision pursuant
to Article 230 EC, in so far as that decision cancels the total
amount of the assistance of EUR 7 778 535 allocated to Project
No 95/10/61/017 and orders the applicant to reimburse the
sum of EUR 6 222 828.

In the contested decision, the Commission claims that the appli-
cant committed irregularities, with regard to Regulation No
1164794 and Commission Decision C (95) 3281 which
granted the European Community financing for the project.
Those irregularities relate in essence to payments made outside
the period of eligibility, unjustified expenditure and the fact that
the applicant has not completed the works within the period
fixed.

First, the applicant maintains that the contested decision is not
based on sufficient reasons and that it is contrary to the prin-
ciple of
legal certainty. That is because the Commission on
several occasions based the contested decision on unclear
criteria and rejected some of the applicant's arguments without
providing grounds for its conclusions.

Second,
vitiated by manifest errors of assessment of the facts, in that:

the applicant claims that

the contested decision is

— due justification has been produced for all amounts put

forward by the applicant;

— the Commission has displayed a lack of clarity in deter-
mining the amounts to be justified, not having also exam-
ined the evidence presented by the applicant to justify that
expenditure;

— the Commission has rejected the applicant's explanations
without establishing the exact legal basis of that rejection;

— the Commission has misinterpreted the facts and the docu-
ments put before it, for the sole purpose of showing fraudu-
lent intent on the applicant's part when there was never any
such intent.

the applicant considers that

Third,
the
amount of the aid, in those circumstances, constitutes an infrin-
gement of Regulation No 1164/94, in that: (i) all the objectives
of that regulation and of Commission Decision C (95) 3281
were attained and (ii) Article H of Annex II was infringed.

the cancellation of

the project and the lack of any fraudulent

Last, the applicant alleges that, having regard to the completion
the
of
contested decision runs counter to the principle of proportion-
ality and to Article 5 EC.

intent,

(Case T-325/06)

(2006/C 326/152)

Language in which the application was lodged: English

Parties

Applicant: Boston Scientific Ltd (Christ Church, Barbados) (repre-
sented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal: Terumo
Kabushiki Kaisha (Tokyo, Japan)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM
of 14 September 2006, served to the representatives of the
plaintiff on 18 September 2006, in Case R 61/2006-2;

— order OHIM to pay the costs of the proceedings before the

Court and Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CAPIO’
goods in class 10 — application No 2 554 434

for

Proprietor of the mark or sign cited in the opposition proceedings:
Terumo Kabushiki Kaisha

(1) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund.

Mark or sign cited: The national and Community word marks
‘CAPIOX’ and ‘CAPIOX PULSE’ for goods in class 10

Decision of the Opposition Division: Rejection of the opposition in
its entirety

30.12.2006

EN

Official Journal of the European Union

C 326/75

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

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

Pleas in law: Infringement of Article 43 of Council Regulation
No 40/94 and Rule 22 of Commission Regulation No 2868/95
as Terumo failed to prove sufficient use of its trade mark, and of
Article 8(1)(b) of the Council regulation as the conflicting trade
marks are not likely to be confused.

Mark or sign cited: The national word mark ‘TOTAL’ for goods in
classes 3, 10 and 21

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 in that the Board of Appeal found a lack of
similarity between the two marks concerned and of Article 63
(2) of the regulation as the Board of Appeal didn't notify any of
the observations submitted by Eric Peterson to the applicant.

Action brought on 21 November 2006 — Total v OHIM —
Peterson (Beverly Hills Formula TOTAL PROTECTION)

(Case T-326/06)

(2006/C 326/153)

Language in which the application was lodged: English

Action brought on 22 November 2006 — Altana Pharma v
OHIM — Avensa (PNEUMO UPDATE)

Parties

Applicant: Total SA (Courbevoie, France)
Aldred, Solicitor)

(represented by: S.

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

Other party to the proceedings before the Board of Appeal: Eric
Peterson (London, United Kingdom)

Form of order sought

— The decision of

the Fourth Board of Appeal dated 5

September 2006 shall be annulled.

— The Court either directs the Board or the Office to refuse Mr
Peterson's
application No
2 988 228, or at its discretion remit the opposition to the
Board for reconsideration.

trade mark

Community

— The applicant receives an award of costs in respect of the
opposition, a reversal of the award of costs made in the
Board's Decision, and an award of costs in respect of this
Application.

Pleas in law and main arguments

Applicant for the Community trade mark: Eric Peterson

Community trade mark concerned: The figurative mark ‘Beverly
Hills Formula TOTAL PROTECTION’ for goods in class 3 —
application No 2 988 228

(Case T -327/06)

(2006/C 326/154)

Language in which the application was lodged: German

Parties

Applicant: Altana Pharma AG (Konstanz, Germany) (represented
by: H. Becker, 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:
Avensa AG (Zug, Switzerland)

Form of order sought

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 11 September 2006 (Case R 668/2005-2);

— order the Office for Harmonisation in the Internal Market
to dismiss opposition No B

(Trade Marks and Designs)
575 524 brought by the opponent;

— in the alternative, order the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) to make a fresh
decision on opposition No B 575 524 brought by the oppo-
nent in the light of the Court's opinion.