Case T-78/07: Action brought on 8 March 2007 — IXI Mobile v OHIM — Klein (IXI)
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), telecommunications, trade-mark law

C 95/54

EN

Official Journal of the European Union

28.4.2007

By the second plea, the applicant asserts that the contested deci-
sion is vitiated by a failure to state reasons, in so far as it does
not make it possible to understand the reasons which led the
defendant to adopt such a measure, or the legal basis on which
it is founded or the reason for which the tender procedure was
partially annulled (that is, in respect of lot 2 only).

In addition to the annulment of the decision of 31 January
2007, the applicant claims compensation for all the damage it
has suffered as a result of that decision.

(1) Contract notice:

‘European Parliament web television channel’

(OJ

2006 S 87-091412).

(2) Case T-383/06 Icuna.Com v Parliament, OJ 2007 C 20, p. 31.
(3) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).

Action brought on 12 March 2007 — Federal Republic of
Germany v Commission

(Case T-74/07)

(2007/C 95/108)

Language of the case: German

kind. It argues in particular that the deviations from the indica-
tive financing plan do not represent a significant alteration of
the plan. The applicant claims that, even if the plan were to
have been significantly altered, the Commission should agree to
that alteration.

In addition, the applicant maintains that insufficient reasons
were given for the reduction. In particular, it claims that there is
no justification for the failure to apply the rule of flexibility in
the ‘Guidelines on the financial closure of operational measures
(1994 — 1999) of the structural funds’ (SEC(1999) 1316).

If it were to be accepted that provisions allowing a reduction
exist, the applicant argues that defendant failed to exercise the
discretion afforded to it in relation to the specific programme.
According to the applicant,
the Commission should have
considered whether a reduction in the European Regional Devel-
opment Fund contribution appeared reasonable.

Lastly, the applicant claims that there was an infringement of
the principle of partnership.

(1) Council Regulation (EC) No 4253/88 of 19 December 1988 laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ 1988 L
374, p. 1).

Parties

Applicant): Federal Republic of Germany (represented by: M.
Lumme and C. Blaschke, assisted by C. von Donat, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission Decision C(2006) 7271 final of
27 December 2006 on the reduction of the period of the
financial contribution of the European Regional Develop-
ment Fund granted by Commission Decision C(95) 2271 to
the Operational Programme under the Community initiative
INTERREG II in the Saarland, Lorraine and Western Palati-
nate regions in Germany,

— order the Commission to pay the costs.

Pleas in law and main arguments

the contribution of

By the contested decision, the Commission reduced the period
of
the European Regional Development
Fund to the Operational Programme for North-Rhine West-
phalia under the Community initiative INTERREG II in the Saar-
land, Lorraine and Western Palatinate regions.

In support of its application, the applicant alleges infringement
of Article 24(2) of Regulation No 4253/88 (1), on the ground
that it contains no provisions allowing for a reduction of that

Action brought on 8 March 2007 — IXI Mobile v OHIM —
Klein (IXI)

(Case T-78/07)

(2007/C 95/109)

Language in which the application was lodged: English

Parties

Applicant: IXI Mobile, Inc (Redwood City, United States) (repre-
sented by: S. Malynicz, Barrister)

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

Other party to the proceedings before the Board of Appeal: Jochen
und Eckhard Klein GbR (Olching, Germany)

Form of order sought

— The decision of

the Second Board of Appeal dated
11 January 2007 in Case R 796/2006-2 dismissing the
appeal shall be annulled;

— the Office and the other party shall bear their own costs and

pay those of the applicant.

28.4.2007

EN

Official Journal of the European Union

C 95/55

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Applicant for the Community trade mark: Polaris Software Lab Ltd

Community trade mark concerned: The word mark ‘IXI’ for goods
in class 9 — application No 723 140

Proprietor of the mark or sign cited in the opposition proceedings:
Jochen und Eckhard Klein GbR

Mark or sign cited: The Community word mark ‘ixi’ for goods in
class 9

Decision of the Opposition Division: Opposition upheld for all the
contested goods

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The opponent did not adduce evidence of similarity
between the respective goods; the Board of Appeal took an
unduly broad view of the scope of protection of the earlier
mark and failed to properly analyse the relevant
factors
governing the assessment of similarity of the respective goods.
Furthermore, the Board of Appeal took the reasons for the
applicant to select its mark into consideration, which the appli-
cant submits is an irrelevant consideration.

Community trade mark concerned: The figurative mark ‘POLARIS’
for goods and services in classes 9 and 42 — application
No 3 267 713

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

Mark or sign cited: The Community word mark ‘POLAR’ for
goods and services in classes 9, 38 and 42

Decision of the Opposition Division: Opposition upheld for all the
contested goods in class 9

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

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
No 40/94 as i) the earlier trade mark can be applied to software
destined to a non-specialist consumer, which could give rise to a
confusion, ii) the small visual and phonetic differences between
the two conflicting trade marks do not suffice to avoid a likeli-
hood of confusion and iii) both marks are connected to the
same meaning.

Action brought on 9 March 2007 — SHS Polar Sistemas
Informáticos v OHIM — Polaris Software Lab (POLARIS)

(Case T-79/07)

(2007/C 95/110)

Language in which the application was lodged: English

Action brought on 15 March 2007 — JanSport
Apparel v OHIM (BUILT TO RESIST)

(Case T-80/07)

(2007/C 95/111)

Language of the case: English

Parties

Applicant: SHS Polar Sistemas Informáticos, SL (Madrid, Spain)
(represented by: C. Hernández Hernández, lawyer)

Parties

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

Other party to the proceedings before the Board of Appeal: Polaris
Software Lab Ltd (Chennai, India)

JanSport Apparel Corp.

(repre-
Applicant:
sented by: C. Bercial Arias, C. Casalonga, K. Dimidjian-
Lecompte, lawyers)

(Wilmington, USA)

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

Form of order sought

— That the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market dated
8 January 2007 in Case R 658/2006-2 be annulled;

— that OHIM bears its own cost and pays those incurred by

the applicant.

Form of order sought

— Annul the contested decision R 1090/2006-2 of the Second
Board of Appeal, dated 12 January 2007, partially refusing
the registration of CTM Application No 2937522 BUILT TO
RESIST for the following goods: