Case T-401/06: Action brought on 28 December 2006 — Brosmann Footwear (HK) and Others v Council
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: China, Council of the European Union, Viet Nam, action for annulment (EU), anti-dumping duty, footwear industry, import (EU), leather, originating product

C 42/34

EN

Official Journal of the European Union

24.2.2007

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

Market in appeal case R 308/2005-4 in relation to Com-
munity trade mark application No 2 843 514 ‘GIROPAY’;

Other party to the proceedings before the OHIM Board of Appeal:
Union Investment Privatfonds GmbH.

— order the Office for Harmonisation in the Internal Market to

pay the costs of the proceedings.

Form of order sought

— Annul the contested decision.

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘GIROPAY’ for
goods and services in Classes 9, 36-38 and 42 (Application No
2 843 514).

Applicant for a Community trade mark: Unicredito Italiano SpA

Decision of the Examiner: Partial rejection of the application.

Community trade mark concerned: Figurative mark ‘1 Unicredit’,
registration application No 2.055.069 for goods and services in
Classes 9, 16, 35, 36, 38, 39, 41 and 42.

Proprietor of the mark or sign cited in the opposition proceedings:
Union Investment Privatfonds GmbH

Mark or sign cited in opposition: German word marks ‘UNIFONDS’
(No 881.995) and ‘UNIRAK’ (No 991.997) and figurative mark
‘UNIZINS’
for services in Class 36 (capital
investment).

(No 2.016.954)

Decision of the Opposition Division: to allow the opposition.

Decision of the Board of Appeal: to dismiss the action.

Pleas in law: Misapplication of the theory of the extended protec-
tion of ‘serial marks’ as formulated by the Court of First Instance
in Case T-194/03 Il Ponte Finanziaria v OHIM [2006] ECR II-
0000 (Bainbridge).

Action brought on 27 December 2006 — giropay v OHIM
(GIROPAY)

(Case T-399/06)

(2007/C 42/60)

Language of the case: German

Parties

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

Pleas in law: The mark applied for does not present any descrip-
tive indications for the purposes of Article 7(1)(c) of Regulation
(EC) No 40/94 (1). In addition, the mark applied for is particu-
larly capable of being perceived by the relevant public as a
distinctive sign.

(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 28 December 2006 — Brosmann Foot-
wear (HK) and Others v Council

(Case T-401/06)

(2007/C 42/61)

Language of the case: English

Parties

Applicants: Brosmann Footwear (HK) Ltd (Kowloon, Hong Kong),
Seasonable Footwear (Zhong Shan) Ltd (Banfu, China), Lung Pao
Footwear (Guangzhou) Ltd (Guangzhou, China), Risen Footwear
(HK) Co. Ltd (Kowloon, Hong Kong) (represented by: L. Ruess-
mann, A. Willems, lawyers)

Applicant: Giropay GmbH (Frankfurt am Main, Germany) (repre-
sented by: K. Gründig-Schnelle, lawyer)

Defendant: Council of the European Union

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

Form of order sought

Form of order sought

— Annul Council Regulation (EC) No 1472/2006 to the extent
it imposes anti-dumping duties on exports by the applicants;

— annul the decision of 26 October 2006 of the Fourth Board
of Appeal of the Office for Harmonisation in the Internal

— order the Council to pay the costs.

24.2.2007

EN

Official Journal of the European Union

C 42/35

Pleas in law and main arguments

By the present application, the applicants are seeking annulment
of the contested regulation to the extent that it imposes anti-
dumping duties on their exports to the European Union. The
application is based on the following grounds:

— A breach of Articles 2(7)(b) and (9)(5) of Council Regulation
(EC) No 384/96 on protection against dumped imports (the
‘Basic Regulation’), Article VI of the GATT, as well as princi-
ples of non-discrimination, nemo auditur and legitimate
expectations, with regard to the failure of the Community
institutions to examine each Market Economy Treatment
(‘MET’) and Individual Treatment (‘IT’) request individually;

— a violation of Articles 18 and 20 of the Basic Regulation,
and a breach of the applicants' rights of defence with regard
to the Community's Institutions' failure to inform the appli-
cants of the treatment accorded to MET and IT requests;

the standing of

the Community producers

— a manifest error of assessment as well as a breach of Arti-
cles 5(4) of the Basic Regulation with regard to the evalua-
tion of
in
supporting the investigation, Article 1(4) of the Basic Regu-
lation with regard to the definition of the product scope,
Article 17 of the Basic Regulation and Article 253 EC with
regard to the selection of the sample of exporting producers,
Article 3(2) of the Basic Regulation and Article 253 EC with
regard to the injury of determination, Article 3(2) of the
Basic Regulation with regard to the assessment of the causal
link between dumped imports and injury, and,
finally,
Article 9(4) of the Basic Regulation in the calculation of the
injury elimination level.

Action brought on 27 December 2006 — Spain v Commis-
sion

(Case T-402/06)

(2007/C 42/62)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission decision C(2006) 5105 of
20 October 2006 reducing the assistance granted by the

Cohesion Fund for eight projects under way in the territory
of the Autonomous Community of Catalonia;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action challenges Commission decision C(2006) 5105 of
20 October 2006 reducing the assistance granted by the Cohe-
sion Fund for the eight projects under way in the territory of
the Autonomous Community of Catalonia (‘the contested deci-
sion’), viz:.

— No 2001.ES.16.C.PE.058 (project for extension of biological

treatment at the Besos treatment station)

— No 2003.ES.16.C.PE.005 (project for waste-water disposal

infrastructures in small towns in Catalonia)

— No 2001.ES.16.C.PE.054 (project for treatment of sludge

and reuse of urban waste water in Catalonia)

— No 2000.ES.16.C.PE.112 (project

for drainage and water
treatment in the Ebro Basin: Monzón, Caspe and inland
river basins of Catalonia)

— No 2002.ES.16.C.PE.006 (project for a desalination [of sea-

water] plant in the Tordera delta)

— No 2001.ES.16.C.PE.055 (project

for construction and
improvement of the infrastructures for treating municipal
solid waste in Catalonia)

— No 2001.ES.16.C.PE.057 (project for municipal waste-treat-
ment plants in the districts of Urgell, Pallars Jussa and Conca
de Barberá)

— No 2002.ES.16.C.PE.041 (project for the establishment and
improvement of the network of infrastructures for the treat-
ment of municipal waste in Catalonia).

In the contested decision the defendant made a correction of
2 % of the Community assistance (85 %) granted for the project
2001.ES.16.C.PE.058, because the management company had
charged ineligible expenditure.

So far as concerns the other projects, the Commission, having
regard to the use of the ‘average prices’ system and the ‘experi-
ence of previous works’ criterion, has decided to apply a finan-
cial correction to 100 % of the Community difference in terms
of Community assistance between the tenders selected and
those recalculated contract by contract.

In support of its claims, the applicant State alleges, principally,
misinterpretation of Article 30(1) of Directive 93/37/EEC (1)
and of Article 36(1) and (2) of Directive 92/50/EEC (2), in so far
as the contested decision concludes that application of
the
average prices system used in the analysis of ‘the most econom-
ically advantageous tender’ in the projects awarded infringes the
principle of equal treatment, by discriminating against tenders
which are too low compared with other more costly tenders.