Case T-412/06: Action brought on 29 December 2006 — Vitro Corporativo v OHIM — VKR Holding (Vitro)
Date: 2007-02-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), glass industry, trade-mark law

24.2.2007

EN

Official Journal of the European Union

C 42/41

Form of order sought

The applicant claims that the Court should:

— annul the decisions of the EAR cancelling the works tender
procedure ‘Restoring of Unhindered Navigation (removal of
unexploded ordnance)
in the Inland Waterway Transport
System, Republic of Serbia, Serbia and Montenegro’ (Publi-
cation Reference No: EuropeAid/120694/D/W/YU, Project
No 05SER01 04 01) and launching a new tender procedure,
communicated by AER letter of 9 October 2006, Prot. D
(06)DG/MIL/EP 2715 and AER letter of 14 December 2006,
Prot. DG/mie/3313,
together with all other prior or
connected acts, including the decision excluding the appli-
in any case, order the European Agency for
cant, and,
Reconstruction to pay damages to the applicant
in the
amount specified in the application;

— order the European Agency for Reconstruction to pay the

costs.

Pleas in law and main arguments

The object of the tender procedure at issue in the present case
was the award of a public works contract for works consisting
in the identification and clearance of unexploded military
ordnance left over from the aerial bombardment carried out by
NATO in 1999, with a view to re-opening the waterways of the
Danube and the Sava for inland navigation.

After its tender had been found to be the most suitable, the
applicant received a first request for clarifications, which were
provided without delay. In particular, precise reasons were given
for the presence, as leader of the aquatic survey team, of a
person who had high qualifications but whose work experience
fell short of that specified in the call for tenders.

Following professional contacts with a consultancy which had
provided the European Agency for Reconstruction with advice
in respect of the tender procedure in question, on the basis of
which the applicant was led to expect a positive outcome, the
applicant was informed that the tender procedure had been
cancelled for lack of tenders which were technically suitable, and
it became clear that there was an intention to issue a new call
for tenders.

In support of its claims, the applicant alleges infringement of
Article 41 of Directive 2004/18 of the European Parliament and
of the Council of 31 March 2004 on the coordination of proce-
dures for the award of public works contracts, public supply
contracts and public service contracts (1) and, more generally,
breach of the principles that govern Community legislation on
public procurement procedures, in so far as the annulment of
the tendering procedure in question was the result of a choice
made without careful reflection and without an in-depth assess-
ment of the public interest to be safeguarded. Secondly, the
applicant alleges failure to comply with the obligation to state
reasons.

(1) OJ 2004 L 134, 30.4.2004, p. 114.

Action brought on 29 December 2006 — Vitro Corpora-
tivo v OHIM — VKR Holding (Vitro)

(Case T-412/06)

(2007/C 42/72)

Language in which the application was lodged: Spanish

Parties

Applicant: Vitro Corporativo, S.A. de C.V.
J. Botella Reyna, lawyer)

(represented by:

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

Other party to the proceedings before the Board of Appeal of OHIM:
VKR Holding A/S

Form of order sought

— Declare that the Community trade mark VITRO be registered

for goods in Class 19

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘Vitro’
(CTR
application No 2 669 521) for goods and services in Classes 1,
7, 8, 9, 11, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35, 39, 40, 41,
42 and 43.

Proprietor of the mark or sign cited in the opposition proceedings:
VKR Holding A/S

Mark or sign cited in opposition: Danish (No 1956 1415 VR),
German (No 725 452), United Kingdom (No 1 436 897) and
Community (No 651 745) word marks ‘VITRAL’, for goods,
inter alia, in Class 19 (building glass, window glass, safety and
isolating glass), in respect of which the opposition proceedings
were lodged.

Decision of the Opposition Division: The opposition was upheld
and the Community trade mark was refused for goods in
Class 19.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
No 40/94 on the Community trade mark.