Case T-87/07: Action brought on 22 March 2007 — Scil Proteins v OHIM — Indena (affilene)
Date: 2007-05-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), chemical industry, medical plant, trade-mark law

26.5.2007

EN

Official Journal of the European Union

C 117/27

Decision of the Opposition Division: Opposition upheld.

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Appeal allowed in part, to the
extent
the trade mark is allowed for
that
‘bath-robes’ (class 25).

registration of

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Regulation
(EC) No 40/94 (1), as the evidence submitted by the applicant
was not regarded as sufficient proof of genuine use and infringe-
ment of Article 8(1)(b) of Regulation No 40/94 as there is a
likelihood of confusion between the marks in opposition.

(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 21 March 2007 — Deichmann-Schuhe v
OHIM — Design for Woman (DEITECH)

(Case T-86/07)

(2007/C 117/42)

Language in which the application was lodged: German

Parties

Action brought on 22 March 2007 — Scil Proteins v OHIM
— Indena (affilene)

(Case T-87/07)

(2007/C 117/43)

Applicant: Heinrich Deichmann-Schuhe GmbH & Co. KG (Essen,
Germany) (represented by: O. Rauscher, lawyer)

Language in which the application was lodged: English

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

Parties

Other party to the proceedings before the Board of Appeal of OHIM:
Design for Woman SA

Applicant: Scil Proteins GmbH (Halle, Germany) (represented by:
V. Dalichau, lawyer)

Form of order sought

The applicant claims that the Court should:

— set aside the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 22 January 2007 (case number
R 791/2006-2);

— reject Community trade mark application No 3 378 643 as
regards all goods in Class 25 (Clothing, footwear, headgear);

— order the Office for Harmonisation in the Internal Market to

pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Design for Woman SA

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

Other party
Indena SpA (Milan, Italy)

to the proceedings before

the Board of Appeal:

Form of order sought

— The decision of the Second Board of Appeal of the defen-
dant dated 23 January 2006, and the decision-corrigendum
of
the Second Board of Appeal of 31 January 2007,
Case R 10/2006-2 be annulled as far as the opposition is
dismissed with respect to the goods ‘extracts of medical
plants for use in the … cosmetic and food industries, not
for diagnostic purposes’;

— the costs of the proceedings be borne by the defendant.

Community trade mark concerned: The figurative mark ‘DEITECH’
for goods in Classes 18 and 25 (Application No 3 378 643)

Pleas in law and main arguments

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

Mark or sign cited in opposition: The German figurative mark
‘DEI-tex’ for goods in Class 25 and the international figurative
mark ‘DEI-tex’ for goods in Class 25, the opposition having
been brought against registration in Class 25

Applicant for the Community trade mark: Indena SpA

Community trade mark concerned: The figurative mark ‘affilene’ for
goods in class 1 — application No 2 751 931

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

C 117/28

EN

Official Journal of the European Union

26.5.2007

Mark or sign cited: The Community word mark ‘AFFILIN’ for
goods in classes 1 and 5

decision also prohibits the applicant from applying for new
licences before the end of 2011.

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Opposition upheld partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 since the trade marks in question are confus-
ingly similar also with regard to the goods for which the regis-
tration was allowed to proceed by the Board of Appeal.

brought
22 March
Samochodów Osobowych v Commission

on

2007 — Fabryka

(Case T-88/07)

(2007/C 117/44)

Language of the case: Polish

Action

Parties:

Applicant: Fabryka Samochodów Osobowych S.A.
Republic
Poland)
R.A. Kozłowski and G. Dźwigała, lawyers)

(Warsaw,
by: W. Radzikowski,

(represented

of

Defendant: Commission of the European Communities

Form of order sought:

— declare invalid the Commission's decision in so far as
concerns Article 2(2), (3) and (4) introducing compensatory
measures in the form of:
limiting up to the end of
(a)
February 2011 annual motor-car production by FSO and all
of
its present and future subsidiaries and all companies
controlled by FSO as a shareholder, and (b) a prohibition on
applying for new licences up to the end of February 2011;

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments:

The applicant seeks a declaration of invalidity in regard to the
decision of the European Commission of 20 December 2006 in
State aid Case No C 3/2005 [ex N 592/2004 (ex. PL 51/2004)]
declaring compatible with the common market aid measures
which, according to the wording of the decision, have been
partially implemented by Poland in favour of the applicant, in
so far as that decision imposes on the applicant/aid recipient an
obligation to limit the annual production and sale of motor cars
within the territory of the EU until 2011. In its grounds the

the applicant submits that

In its application for a declaration that the abovementioned
decision is invalid,
the decision
breaches the provisions of the EC Treaty and essential rules
governing its application. The applicant also contends that the
contested decision was adopted in a manner which infringed
essential procedural requirements.

In support of its action, the applicant sets out the following
heads of complaint:

— in recognising part of the aid as having been implemented,
the Commission breached Article 88(3) EC and Article 3 of
Council Regulation (EC) No 659/1999 (1) and committed a
manifest error in the appraisal of the facts;

improper determination,

— in defining the scope of the compensatory measures, the
Commission infringed the principle of proportionality, the
principle of free exercise of economic activity, Article 253 EC
and paragraphs 11, 32, 37, 39 and 54 of the Community
Guidelines on State aid for rescuing and restructuring firms
in difficulty (2), and also committed a manifest error in its
appraisal of the facts of the case, in particular by reason of
the following:
in the applicant's
view, of the value of the public aid by reason of the fact that
that value was exaggerated; failure to take account of the
form of
the appropriate
improper definition of
market; incorrect determination of the market share of the
applicant, which was the recipient of the aid; failure to take
account of essential elements in determining the effects of
the establishment of
granting the aid to the applicant;
compensatory measures which will have an adverse effect on
the applicant's recovery of
its capacity to function after
restructuring has been completed; and also failure to take
account of the fact that the applicant operated in regions
that were entitled to receive regional aid;

the aid;

— the Commission infringed the principle of

legal certainty
and Article 253 EC by introducing into the grounds of the
decision an additional compensatory measure which had not
been defined in the principal grounds (petitum) of the deci-
sion;

— by not providing adequate clarification as to the nature and
scope of the compensatory measures imposed, and by not
referring to all the proposals notified in that matter, the
Commission breached Article 253 EC.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ 1999 L 83, p. 1).
(2) OJ 1999 C 288, p. 2.