Case T-413/07: Action brought on 14 November 2007 — Bayern Innovativ v OHIM — Life Sciences Partners Perstock (LifeScience)
Date: 2007-11-14
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), innovation, knowledge management, trade-mark law

C 8/24

EN

Official Journal of the European Union

12.1.2008

Pleas in law and main arguments

Community trade mark concerned: word mark ‘JURADO’ (Appli-
cation No 240.218).

Goods or Services: goods in Class 30.

Proprietor of the trade mark which is the subject of the application:
CAFETAL DE COSTA RICA S.A.

Decision of
the Examiner: dismissal by the Administration of
Trade Marks and Legal Division of the application for restitutio
in integrum brought by the applicant, the licensee of the trade
mark in question, as a result of the cancellation of the registra-
tion of that trade mark, owing to the failure of the proprietor to
seek the appropriate renewal.

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

Pleas in law: infringement of the right to a fair hearing and an
incorrect interpretation, in the present case, of Articles 47 and
78(1) of Regulation (EC) No 40/94 on the Community trade
mark.

Action brought on 19 November 2007 — Aer Lingus
Group v Commission

(Case T-411/07)

(2008/C 8/43)

Language of the case: English

Parties

Applicant: Aer Lingus Group plc (Dublin, Ireland) (represented
by: A. Burnside, Solicitor, B. van de Walle de Ghelcke, lawyer, T.
Snels, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul

the contested decision adopted by the European

Commission on 11 October 2007;

— order the Commission to pay the costs.

Pleas in law and main arguments

By means of this application, the applicant seeks annulment of
Commission Decision C(2007) 4600 of 11 October 2007 by
which the Commission rejected the applicant's request to initiate
proceedings under Article 8(4) and to adopt interim measures

under Article 8(5) of Council Regulation (EC) No 139/2004 (the
‘EC Merger Regulation’),
following Commission Decision
C(2007) 3104 of 27 June 2007 (‘the Prohibition Decision’)
declaring a concentration incompatible with the common
market and the functioning of
(Case
COMP/M.4439 — Ryanair — Aer Lingus).

the EEA Agreement

The applicant submits that the Commission has both miscon-
strued and misapplied Articles 8(4) and 8(5) of the EC Merger
Regulation by stating that it did not have the power to require
Ryanair,
its
minority stake in Aer Lingus, or to take other measures to
restore the status quo ante, or to take interim measures in the
meantime.

following the Prohibition Decision,

to divest

The applicant claims in particular that, since the Commission
explicitly treated this minority stake and Ryanair's associated
public offer for Aer Lingus as forming integral parts of the same
single concentration, it follows that the prohibited concentration
has been partially implemented. Moreover,
applicant
contends that Articles 8(4) and 8(5) of the EC Merger Regu-
lation empower the Commission in these circumstances to act
to address the adverse effects on competition arising from this
minority shareholding linking two companies which have been
held to be each other's closest competitors on air transport
routes to and from Ireland.

the

The applicant further claims that the Commission has acted in
breach of Article 21(3) of the EC Merger Regulation by failing
to assert its exclusive jurisdiction and instead leaving open the
possibility on intervention by Member States.

Action brought on 14 November 2007 — Bayern Innovativ
v OHIM — Life Sciences Partners Perstock (LifeScience)

(Case T-413/07)

(2008/C 8/44)

Language of the case: English

Parties

Applicant: Bayern Innovativ — Bayerische Gesellschaft für Inno-
vation und Wissenstransfer mbH (Nürnberg, Germany) (repre-
sented by: A. Beschorner, B. Glaser, C. Thomas, lawyers)

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

Other party to the proceedings before the Board of Appeal: Life
Sciences Partners Perstock N.V. (Amsterdam, The Netherlands)

12.1.2008

EN

Official Journal of the European Union

C 8/25

Form of order sought

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

— To annul

the decision of

the First Board of Appeal
No R 1545/2006-1 of 2 August 2007 regarding Com-
munity trade mark No 3 585 957 ‘LifeScience’;

— to reject the opposition No B 795 270 of the intervener in

its entirety;

— to order the OHIM to register the Community trade mark

No 3 585 957 ‘LifeScience’ as published;

— to order the other party to pay the costs incurred in the
proceedings before the Court and to order the intervener to
pay the costs of the administrative proceedings before the
Board of Appeal.

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal: Red Letter
Days Ltd (London, United Kingdom)

Form of order sought

— Annul

the decision of

the First Board of Appeal dated
14 September 2007, No R 1117/2005-1, in so far as the
decision provided for the admission of new evidence in
support of the grounds of opposition;

Applicant for the Community trade mark: The applicant

— order that the defendant pays the applicant's costs of this

appeal.

Community trade mark concerned: The figurative Community trade
mark consisting of a coloured representation of a spiral DNA
chain, an oval and a grid and containing the verbal elements
‘LifeScience’ written below for goods and services in Classes 16,
35, 36, 41, 42 — application No 3 585 957

Pleas in law and main arguments

Proprietor of the mark or sign cited in the opposition proceedings: Life
Sciences Partners Perstock N.V.

Applicant for the Community trade mark: The applicant

sign cited: The figurative Community trade mark
Mark or
consisting of a representation of a naked woman wrapped in a
DNA chain and containing the word elements ‘Life Sciences
Partners’
for services in Classes 35 and 36 — application
No 2 136 026.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:
Regulation No 40/94.

Infringement of Article 8(1)(b) of (EC) Council

Action brought on 21 November 2007 — RedEnvelope v
OHIM — Red Letter Days (redENVELOPE)

(Case T-415/07)

(2008/C 8/45)

Language of the case: English

Parties

Applicant: RedEnvelope Inc. (San Francisco, United States) (repre-
sented by: A. Poulter, Solicitor)

trade mark

Community
figurative mark
concerned:
‘redENVELOPE’ for services in classes 35 and 42 — application
No 1 601 327

The

Proprietor of the mark or sign cited in the opposition proceedings: Red
Letter Days Ltd

Mark or sign cited: The registered and non-registered national
word and figurative marks ‘RED LETTER’, ‘RED LETTER DAYS’
and ‘RED LETTER DAYS PLC’ for goods and services in classes
9, 14, 16, 18, 21, 22, 25, 26, 33, 36, 39, 41, 42, 43 and 44

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and remittal of the case to the Opposition
Division for
regards
Article 8(4) of Council Regulation No 40/94

further consideration in so far as it

Pleas in law: Violation of Article 74(2) of Council Regulation
No 40/94, as the Board of Appeal admitted new evidence,
which will allow the Opposition Division to make a decision
based on evidence, which was not available earlier
in the
proceedings and to which the applicant has not had an opportu-
nity to respond before the Opposition Division.