Case T-209/07: Action brought on 12 June 2007 — Gaedertz v OHIM — Living Byte Software (GlobalRemote)
Date: 2007-08-04
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), computer systems, software, trade-mark law

C 183/38

EN

Official Journal of the European Union

4.8.2007

Form of order sought

— Annul the decision;

— order the Commission to bear the costs.

Action brought on 12 June 2007 — Gaedertz v OHIM —
Living Byte Software (GlobalRemote)

(Case T-209/07)

(2007/C 183/73)

Language in which the application was lodged: German

Pleas in law and main arguments

Parties

The applicants seek the annulment of the Commission's deci-
sion of 26 March 2007 concerning the national allocation plan
for the allocation of greenhouse gas emission allowances for the
period 2008-2012 notified by Poland in accordance with Direc-
tive 2003/87/EC (1).

Applicant:
Germany) (represented by: E. M. Gerstenberg, Rechtsanwalt)

Johann-Christoph Gaedertz (Frankfurt am Main,

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

Other party to the proceedings before the Board of Appeal of OHIM:
Living Byte Software GmbH

In support of their application the applicants allege that the
Commission erred by adopting a decision substantially reducing,
inter alia, the total quantity of CO2 emission allowances that
installations covered by Directive 2003/87/EC can emit.

Form of order sought

in this regard that

The applicants submit
the Commission
breached essential procedural requirements laid down in Direc-
tive 2003/87/EC in that it i) unlawfully adopted the contested
decision after the expiry of the three-month period laid down in
Article 9(3) of the directive, and ii) unlawfully restricted the
applicants' right to be consulted prior to Poland's adoption of a
definitive national allocation plan for greenhouse gas emission
allowances for the period 2008-2012.

The applicants furthermore claim that the Commission misused
the powers conferred upon it under Directive 2003/87/EC in
that it i) adopted too low a GDP growth rate for Poland and too
stringent an emission reduction ratio, which resulted in the allo-
cation of an underestimated total emission quota for Poland;
and ii) distorted the real purpose of the directive as a cost-effec-
tive instrument for the fulfilment of the greenhouse gas emis-
sion commitments of the parties to the Kyoto Protocol by redu-
cing the national emission level for 2008-2012 far below what
was needed for Poland to fulfil its Kyoto objective.

Finally, the applicants contend that the Commission disregarded
the principles of legitimate expectations, proportionality, equal
treatment and the duty for institutional cooperation as well as
its obligation to state reasons.

(1) Directive 2003/87/EC of

the
Council of 13 October 2003 establishing a scheme for greenhouse
gas emission allowance trading within the Community and amending
Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

the European Parliament and of

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 25 April
2007 in Case R 272/2005-4;

— Declare Community trade mark No 1 466 499 ‘GlobalRe-

mote’ invalid;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: The figurative mark ‘GlobalRemote’ for
goods and services in Classes 9, 38 and 42 (Community trade
mark No 1 466 499).

Proprietor of
GmbH.

the Community trade mark: Living Byte Software

Applicant for the declaration of invalidity: The applicant.

Decision of the Cancellation Division: Rejection of the application
for a declaration of invalidity.

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

Pleas in law: In particular, infringement of Article 7(1)(b) and (c)
of Regulation (EC) No 40/94 (1) since the Community trade
mark in respect of which a declaration of invalidity has been
sought is devoid of the necessary distinctive character and is of
a purely descriptive nature.

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

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