Case T-173/07: Action brought on 18 May 2007 — Reno Schuhcentrum v OHIM — Payless ShoeSource Worldwide (Payless ShoeSource)
Date: 2007-07-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), business management, consultancy, footwear industry, trade-mark law

C 170/30

EN

Official Journal of the European Union

21.7.2007

Pleas in law and main arguments

Action brought on 18 May 2007 — Reno Schuhcentrum v
(Payless
OHIM — Payless

ShoeSource Worldwide
ShoeSource)

By means of their application, the applicants seek pursuant to
Article 230 EC, the annulment of Commission Regulation (EC)
No 147/2007 of 15 February 2007 adapting certain fish quotas
from 2007 to 2012 pursuant to Article 23(4) of Council Regu-
lation (EC) No 2371/2002 on the conservation and sustainable
exploitation of fisheries resources under the Common Fisheries
Policy (1).

(Case T-173/07)

(2007/C 170/59)

Language in which the application was lodged: English

The applicants submit that the contested regulation should be
invalidated on the basis of four grounds:

Parties

First, the applicants claim that the Commission lacked power to
adopt
the contested regulation reducing quotas in 2007 to
2012 on the basis of Article 23(4) of Council Regulation
2371/2002.

In the alternative, the applicants submit that should the Court
conclude that the Commission was empowered to effect quota
deductions for several years into the future on the basis of
historic over-fishing, the Commission has allegedly misused its
In fact, the applicants contend that the
power in this case.
Commission has not established that
the Member States
concerned by the contested regulation, namely, Ireland and the
United Kingdom, have exceeded the fishing opportunities allo-
cated to them, as required by Article 23(4) of the said regulation
for deduction of quotas. Moreover, the applicants maintain that
the Commission's sudden change of its established policy of
deducting quotas on a ‘previous year basis’ departing from the
wording and derived practice of Article 5 of Council Regulation
874/96, has breached the principle of legitimate expectations.

Furthermore, the applicants claim that the Commission failed to
provide reasons motivating its decision as required by Article
253 EC. On this basis, they submit that the contested regulation
is inadequately reasoned, in particular, since it represents a clear
and radical shift of policy with seriously adverse implications
for the applicants.

the principle of equal

Finally, the applicants submit that the Commission has acted in
taking
breach of
measures equivalent to those contained in the contested regu-
lation against any other fishing fleet,
in circumstances where
significant over-fishing of similarly threatened fish stock was
reported.

treatment by not

(1) OJ L 46, 16.2.2007, p. 10.

Applicant: Reno Schuhcentrum GmbH (Thaleischweiler-Fröschen,
Germany) (represented by: S. Schäffner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Payless
ShoeSource Worldwide, Inc. (Topeka, United States)

Form of order sought

The applicant claims the Court to:

— annul the decision of the First Board of Appeal of the OHIM
of 28 February 2007 (Case R 1209/2005-1), dismissing the
appeal relating to revocation proceedings No 731C 0000
186 163/1 (Community trade mark No 186 163 — Payless
ShoeSource);

— order the OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revoca-
tion: The figurative Community trade mark ‘Payless ShoeSource’
for goods and services in Classes 25, 35 and 42 — application
No 186 163

Proprietor of
Worldwide, Inc.

the Community trade mark: Payless ShoeSource

Party requesting the revocation of the Community trade mark: Reno
Schuhcentrum GmbH

Decision of
the Cancellation Division: Rejected the revocation
request partially, maintaining registration for goods and services
in Class 25 in force.

Decision of the Board of Appeal: Dismissed the appeal directed
against the remaining goods and services in Class 25.

21.7.2007

EN

Official Journal of the European Union

C 170/31

Pleas in law: The applicant claims that the contested decision is
vitiated by an essential procedural requirement in respect of
Article 74 CTMR and the burden of proof. According to the
in revocation proceedings, the burden of proof in
applicant,
respect of genuine use lies with the proprietor of the trade
mark. Moreover, the applicant submits that the Office cannot
examine the facts on its own motion but its examination should
be confined to the assessment of the facts, evidence and argu-
ments provided by the parties and the relief sought. Thus, the
applicant claims that the Board's communication of 18 October
2006 on the basis of which the trade mark proprietor was
invited to submit the originals of specific statutory declarations
should be declared inadmissible, in particular since the Board
had previously found the initial evidence submitted by the trade
mark proprietor to be insufficient to establish genuine use.

Furthermore, the applicant claims that the said originals were
in accordance to
not submitted within the required deadline,
Article 74(2) CTMR and therefore should not be admitted.

In addition, the applicant submits that the Board erred in its
interpretation of the concept of genuine use infringing thereby
Article 15 CTMR.

Action brought on 23 May 2007 — Mediaset v
Commission

(Case T-177/07)

(2007/C 170/60)

Language of the case: English

Parties

Applicant: Mediaset SpA (Milan,
O'Keeffe, Solicitor, K. Adamantopoulos and G. Rossi, lawyers)

(represented by: D.

Italy)

favour of digital terrestrial broadcasters offering Pay-TV services
and cable Pay-TV operators constitutes State aid which is incom-
patible with the common market.

The applicant, who is a beneficiary of the State aid in question,
invokes the following pleas in law.

that

submits

the applicant

the Commission
First of all,
committed an error of law in the application and interpretation
of Article 87(1) EC insofar as i) the Commission considered aid
granted directly to the consumers to fall within the ambit of
Article 87(1) EC;
the
measure conferred a selective ‘economic advantage’ on the appli-
cant; iii) the Commission concluded that the measure is selective
because it allegedly is discriminatory, and iv) the Commission
considered the measure to distort competition in the common
market.

the Commission concluded that

ii)

applicant

furthermore

The
the Commission
committed a manifest error of appraisal and a manifest error of
law by concluding that the measure was not compatible with
the common market pursuant to Article 87(3)(c) EC.

claims

that

Moreover, the applicant alleges that the Commission infringed
an essential procedural requirement by giving contradictory and
insufficient reasoning contrary to Article 253 EC.

the applicant argues that

Finally,
the Commission infringed
Article 14 of Council Regulation No 659/1999 (2) in ordering
recovery of the measure, because it failed to see that i) the appli-
cant had legitimate expectations to assume the alleged aid was
lawful and ii) because it is impossible to establish the amount of
the aid and identify the potential indirect beneficiaries.

(1) C 52/2005 (ex NN 88/2005, ex CP 101/2004).
(2) 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).

Defendant: Commission of the European Communities

Action brought on 21 May 2007 — Euro-Information v
OHIM

Form of order sought

— Annul, on the basis of Article 230 of the EC Treaty, (ex
Article 173), the Commission's decision of 24 January 2007
on the State aid C 52/2005 which the Republic of Italy has
implemented in relation to the subsidy of digital decoders in
Italy, in particular Articles 1 to 3 thereof;

— order that all the costs occasioned by the applicant in the
course of the present proceedings be borne by the defen-
dant.

Parties

(Case T-178/07)

(2007/C 170/61)

Language of the case: French

Pleas in law and main arguments

Applicant: Société Européenne de traitement de l'Information
SAS (Strasbourg, France)
(represented by P. Greffe and J.
Schouman, laywers)

The applicant seeks the annulment of Commission Decision
C(2006) 6634 final (1) of 24 January 2007 by which the
Commission found that the scheme put in place by Italy in

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