Case T-115/07: Action brought on 13 April 2007 — Last Minute Network v OHIM — Last Minute Tour (LAST MINUTE TOUR)
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), provision of services, tourism, trade information, trade-mark law

9.6.2007

EN

Official Journal of the European Union

C 129/23

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

Action brought on 13 April 2007 — Last Minute Network
v OHIM — Last Minute Tour (LAST MINUTE TOUR)

Other party to the proceedings before the Board of Appeal: Last
Minute Tour SpA (Milan, Italy)

Form of order sought

— Quash in its entirety the decision of the Second Board of
Appeal of the respondent, the Office for Harmonisation in
the Internal Market
(Trade Marks and Designs), dated
8 February 2007;

— declare CTM No 1 552 231 invalid in respect of classes 39

and 42;

— award the costs against the respondent.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘LAST MINUTE
TOUR’ for products and services in classes 16, 39 and 42 —
Community trade mark No 1 552 231

(Case T-115/07)

(2007/C 129/40)

Language in which the application was lodged: English

Parties

Applicant: Last Minute Network Ltd (London, United Kingdom)
(represented by: P. Brownlow, solicitor)

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

Other party to the proceedings before the Board of Appeal: Last
Minute Tour SpA (Milan, Italy)

Form of order sought

— Quash in its entirety the decision of the Second Board of
Appeal of the respondent, the Office for Harmonisation in
the Internal Market
(Trade Marks and Designs), dated
8 February 2007;

Proprietor of the Community trade mark: Last Minute Tour SpA

— declare CTM No 1 552 231 invalid in respect of class 16;

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national non-registered word mark ‘LASTMINUTE.COM’ for
services in classes 39 and 42

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark for the services in classes 39 and 42
and rejection of the request for a declaration of invalidity for
the goods in class 16

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and rejection of the request for a declaration
of invalidity

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council
Regulation No 40/94 as the Board of Appeal wrongly decided
that the applicant's non registered trade mark did not confer on
him the right to prohibit the use in the United Kingdom of the
trade mark applied for and as the Board of Appeal wrongly
applied the test to establish likelihood of confusion.

— award the costs against the respondent.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘LAST MINUTE
TOUR’ for products and services in classes 16, 39 and 42 —
Community trade mark No 1 552 231

Proprietor of the Community trade mark: Last Minute Tour SpA

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national non-registered word mark ‘LASTMINUTE.COM’ for
services in classes 39 and 42

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark for the services in classes 39 and 42
and rejection of the request for a declaration of invalidity for
the goods in class 16

Decision of the Board of Appeal: Dismissal of the appeal lodged by
the applicant asking the partial annulment of the Cancellation
Division's decision in order to obtain a declaration of invalidity
also for the goods in class 16

C 129/24

EN

Official Journal of the European Union

9.6.2007

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council
Regulation No 40/94 as the Board of Appeal wrongly decided
that the applicant's non registered trade mark did not confer on
him the right to prohibit the use in the United Kingdom of the
trade mark applied for and as the Board of Appeal wrongly
applied the test to establish likelihood of confusion.

Action brought on 16 April 2007 — Italy v Commission

(Case T-119/07)

(2007/C 129/41)

Language of the case: Italian

Parties

Applicant:
G. Aiello, lawyer)

Italian Republic

(Rome,

Italy)

(represented by:

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C (2007) 286 final of

7 February 2007;

— order the Commission to pay the costs.

Pleas in law and main arguments

The action is brought against Decision C (2007) 286 final of
7 February 2007 concerning the exemption from excise duty
on mineral oils used as fuel for alumina production in the
Gardanne region, in the Shannon region and in Sardinia applied
by France, Ireland and Italy respectively. That decision declared
lawful 80 % of the amount of the tax exemptions granted by
the Italian Government to Euroallumina SpA, requiring recovery

of the remaining 20 % of the amount of relief accorded to the
beneficiary from 1 January 2004.

In support of its claims, the applicant pleads:

— Infringement of Article 87(1) of the Treaty, in so far as the
contested decision held that the exemption from the excise
duty provided for in the Italian system is State aid. It is
stated in that respect that, as confirmed by the wording of
Directive 2003/96/EC (1), the exemptions from excise duty
in question do not constitute State aid but come within the
nature and the logic of the national tax system. In fact, if
they were State aid the directive cited expressly authorises
said aid, at least for a period until 31 December 2006. With
the measures
regard to the alleged selective character of
under consideration,
the same are
it
addressed in general to all businesses using mineral oils for
the production of aluminium oxide. The fact that there is
only one plant in Italy at which such mineral oils are used
in the production cycle is of purely factual relevance and is
not capable of undermining the general scope of the provi-
sion.

is observed that

— Infringement of Article 87(3) of the Treaty and of the Com-
munity guidelines on national regional aid for 1998, since
the contested exemption from excise duty in issue in the
present case is to be regarded as necessary for the economic
development of the region of Sardinia.

— Infringement of point 51 of E. 3.2 of the Community guide-
lines on State aid for environmental protection (2001/C
37/03), in so far as in the present case there were specific
agreements between the State granting the aid and the reci-
pient firm on the improvement of environmental results.

— Finally,

infringement of the principle of the protection of
legitimate expectations and the presumption of the legality
of Community provisions.

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the
Community framework for the taxation of energy products and elec-
tricity (OJ L 283 of 31.10.2003, p. 51).