Case T-10/07: Action brought on 8 January 2007 — FVB v OHIM — FVD (FVB)
Date: 2007-03-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), financial institution, insurance, trade-mark law

10.3.2007

EN

Official Journal of the European Union

C 56/35

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

Proprietor of the Community design: PepsiCo, Inc.

Mark or sign cited in opposition: Community word mark ‘TORRES
10’ for goods in Class 33 (No 466896) and numerous other
Community, national and international trade marks

Decision of the Opposition Division: Opposition upheld and appli-
cation for registration of the mark refused

Party requesting the declaration of invalidity of the Community design:
The applicant

Design of the party requesting the declaration of invalidity: Registered
Community design for ‘metal plate[s] for games’ — Community
Design No 53186-1

Decision of the Board of Appeal: Appeal upheld, annulment of the
contested decision and rejection of the opposition

Decision of the Invalidity Division: Declaration of invalidity of the
Community design

Pleas in law: Infringement of Article 8(1) (b) of Regulation (EC)
No. 40/94 (1) in that there is a likelihood of confusion of the
conflicting marks

Decision of the Board of Appeal: Annulment of the Invalidity Divi-
sion's decision and dismissal of the application for a declaration
of invalidity of the registered Community design

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

Community trademark (OJ L 11, 1994, p. 1).

Pleas in law: The contested Community Design No 74463-1
lacks novelty and individual character compared to the regis-
tered Community Design No 53186-1, which has claimed
priority of an earlier Spanish design.

Action brought on 9 January 2007 — Grupo Promer Mon-
Graphic v OHIM — PepsiCo (Designs)

(Case T-9/07)

(2007/C 56/66)

Language in which the application was lodged: English

Action brought on 8 January 2007 — FVB v OHIM — FVD
(FVB)

(Case T-10/07)

(2007/C 56/67)

Language in which the application was lodged: German

Parties

Applicant: Grupo Promer Mon-Graphic, SA (Sabadell, Spain)
(represented by: R. Almaraz Palmero, lawyer)

Parties

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

Applicant: FVB Gesellschaft für Finanz- und Versorgungsberatung
mbH (Osnabrück, Germany) (represented by: P. Koehler, lawyer)

Other party to the proceedings before the Board of Appeal: PepsiCo,
Inc. (New York, USA)

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

Form of order sought

— Annulment of the decision of the Third Board of Appeal at

OHIM of 27 October 2006 in Case R 1001/2005-3;

— order the Office for the Harmonisation in the Internal
Market (OHIM) and the intervening party, Pepsico Inc., to
pay all the costs of the dispute before the Court of First
Instance,
including those relating to the procedure before
the Third Board of Appeal.

Pleas in law and main arguments

Registered Community design subject of the application for a declara-
tion of invalidity: Registered Community design for ‘promotional
item[s] for games’ — Community Design No 74463-1

Other party to the proceedings before the Board of Appeal of OHIM:
FVD Gesellschaft für Finanzplanung und Vorsorgemanagement
Deutschland mbH

Form of order sought

— Alter the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) (OHIM) in appeal case R 1343/2005-4
the decision of
of 6 November 2006 so as to annul
12 September 2005 on opposition No B 549 362 of the
Finanz- und Versorgungsdienstgesellschaft
für Finanzbera-
tung und Versorgemanagement mbH against application No
2 126 175 and to reject the opposition;

— Order the defendant to pay the costs of the proceedings.

C 56/36

EN

Official Journal of the European Union

10.3.2007

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FVB’ for services
in Classes 35 and 36 (Application No 2 126 175).

Proprietor of the mark or sign cited in the opposition proceedings:
FVD Gesellschaft für Finanzplanung und Vorsorgemanagement
Deutschland mbH.

Mark or sign cited in opposition: The German word mark ‘FVD’ for
services in Class 36, the opposition being brought against the
registration in Class 36.

Decision of the Opposition Division: Opposition granted, partial
rejection of the application.

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

Pleas in law: The contested decision infringes Article 8(1)(b) of
Regulation (EC) No 40/94 (1) since there is no likelihood of
confusion between the opposing marks.

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

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

Action brought on 12 January 2007 — Frucona Košice v
Commission

(Case T-11/07)

(2007/C 56/68)

Language of the case: English

Parties

Applicant: Frucona Košice a.s. (Košice, Slovak Republic) (repre-
sented by: B. Hartnett, O. Geiss, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission's Decision C(2006)2082 final, of 7 June

2006, in state aid Case No C25/2005;

— annul in whole or in part Article 1 of the said decision;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
the Commission decision of 7 June 2006 on state aid imple-

mented by the Slovak Republic for the applicant (C25/2005),
insofar as it treats the applicant as a recipient of incompatible
state aid and compels it to repay to the Slovak Republic the
entirety of the tax write-off with interest.

In support of its action, the applicant relies on the following ten
pleas in law:

By its first plea, the applicant claims that the Commission mani-
festly erred when determining the amount of the alleged state
aid.

By its second plea, the applicant submits that the contested deci-
sion violates an essential procedural requirement and fails to
have regard to Article 33 EC. In fact, the applicant contends it is
DG Agriculture and not DG Competition which was the compe-
tent directorate to carry out
the investigation and take the
procedural and formal steps that led to the contested decision.

By its third plea, the applicant further submits that the contested
decision violates Section 3, Annex IV of the Treaty of Accession,
Article 253 EC, Article 88 EC and Regulation 659/1999
because the Commission lacked jurisdiction to issue the
contested decision.

By its fourth plea, the applicant contends that the Commission
has erred in fact and in law in applying Article 87(1) EC when
it found bankruptcy proceedings to be more favourable than the
tax settlement.

By its fifth plea, the applicant alleges that the Commission
further erred by finding the tax execution procedure to be more
beneficial than the tax settlement.

By its sixth plea, the applicant submits that the Commission
manifestly erred in law and in fact by failing to discharge the
burden
EC
and Article 253 EC. In addition, the applicant submits that the
Commission disregarded the legal standards set forth by the
Court on the application of the private creditor test.

violating Article

thereby

proof

87(1)

of

By its seventh plea, the applicant claims that the Commission
erred in law and fact by failing to adequately assess and have
regard to the evidence at its disposal.

By its eighth plea, the applicant alleges that the Commission
erred in law and in fact by taking into account
irrelevant
evidence such as internal differences within the tax administra-
tion.

By its ninth plea, the applicant further submits that the decision
violates Article 253 EC by lacking sufficient reasoning to justify
its conclusions.

Lastly, by its tenth plea, the applicant alleges that the Commis-
sion erred by not exempting the tax settlement as restructuring
aid and by retroactively applying the 2004 Restructuring Guide-
lines.