Case T-425/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)
Date: 2007-11-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 22/46

EN

Official Journal of the European Union

26.1.2008

Form of order sought

— annulment of the decision of the First Board of Appeal of
OHIM of 6 September 2007 in Case R 290/2007-1, in so
far as it refused the registration of the Community trade
mark No 5 225 776 in respect of goods and services
claimed in Classes 9, 35, 36, 38 and 42;

— registration of the Community trade mark No 5 225 776 in

respect of all the goods and services claimed.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark comprising a
representation of a hand holding a card followed by three black
triangles for goods and services in Classes 9, 35, 36, 38 and 42
(Application No 5 225 776)

Decision of the Examiner: Partial refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant states that, contrary to the finding of
the Board of Appeal of OHIM in the contested decision, the
elements comprising the trade mark, the registration of which
was partially refused, are distinctive and arbitrary in respect of
the goods and services claimed and, consequently, their combi-
nation must be also considered to be distinctive and arbitrary.

Action brought on 22 November 2007 — Deutsche Post v
Commission

(Case T-421/07)

(2008/C 22/86)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J.
Sedemund and T. Lübbig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Commission of the European
Communities of 12 September 2007 ‘State aid C 36/07 (ex
NN 25/07) — State aid to Deutsche Post AG, invitation to
submit comments pursuant
the EC
Treaty’;

to Article 88(2) of

— Order the defendant to pay the costs.

(OJ 2007 C 245, p. 21). The proceedings begun by that decision
are intended as a supplementary investigation into the proceed-
ings which were instituted on 23 October 1999 by the
Commission and in which the Commission issued a negative
decision on 19 June 2002 (OJ 2002 L 247, p 27). In that nega-
tive decision, the Commission found that Deutsche Post's prices
for its Haus-zu-Haus-Paketdienst (house to house parcel service)
were below the service-specific supplementary costs and that
that aggressive discount policy was not part of its public supply
obligations.

In support of its claim, the applicant submits that the contested
decision infringes basic procedural principles. In particular, there
is an infringement of the principle of the protection of legiti-
mate expectations, since the Commission had for years been
aware of the predominant facts of the case and on 19 June
2002 issued a final decision relating thereto. In addition, the
right of the Federal Republic of Germany and the applicant to
participate has been infringed in that they were not given the
opportunity to take a position on the contested decision before
it was issued. Finally, it is submitted in that regard that there is a
breach of Regulation (EC) No 659/1999 (1), since it follows
from the scheme of that provision that a negative decision, such
as that of 19 June 2002, is final and that the defendant cannot
make facts which are subject to a final ruling the subject-matter
of a renewed aid verification procedure.

Further, the applicant submits that the defendant has infringed
the duty to state reasons under Article 253 EC and Article 6(1)
of Regulation No 659/1999, since the contested decision does
not make it clear which measures the Commission seeks to clas-
sify as State aid and, moreover, the decision contains no legal
description.

Finally, it is alleged that there is an infringement of Article 87(1)
EC and Article 88 EC, since the measures referred to in the
contested decision ought not to be classified as State aid.

(1) Council Decision (EC) No 659/1999 of 22 March 1999 laying down
detailed rules for the application of Article [88 EC] (OJ 1999 L 83,
p. 1).

Action brought on 16 November 2007 — Agencja
Wydawnicza Technopol v OHIM (100)

(Case T-425/07)

(2008/C 22/87)

Language of the case: Polish

Pleas in law and main arguments

Parties

the
The applicant seeks the annulment of
Commission to institute the proceedings under Article 88(2) EC
with regard to State aid C 26/07 (ex NN 25/07). That decision
was notified to Germany by letter of 12 September 2007

the decision of

Applicant: Agencja Wydawnicza
(Częstochowa, Poland)
adviser)

z
(represented by D. Rzążewska,

Technopol

sp.

o.o.
legal

26.1.2008

EN

Official Journal of the European Union

C 22/47

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

Pleas in law and main arguments

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
(Trade
and Designs) of 3 September 2007 in Case

Office for Harmonisation in the Internal Market
Marks
R 1274/2006-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘300’ for goods and
services in Classes 16, 28 and 41 (Application No 3 875 416).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of
Regulation No 40/94 on the Community trade mark (1) since,
in the applicant's submission, the sign ‘300’ is neither descrip-
tive nor devoid of distinctive character in relation to the goods
and services indicated.

Community trade mark concerned: Word mark ‘100’ for goods and
services in Classes 16, 28 and 41 (Application No 3 875 408).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Decision of the Examiner: Refusal of registration.

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

Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of
Regulation No 40/94 on the Community trade mark (1) since,
in the applicant's submission, the sign ‘100’ is neither descrip-
tive nor devoid of distinctive character in relation to the goods
and services indicated.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994

L 11, p. 1).

Action brought on 16 November 2007 — Agencja
Wydawnicza Technopol v OHIM (300)

(Case T-426/07)

(2008/C 22/88)

Language of the case: Polish

Parties

Action brought on 16 November 2007 — Mirto
Corporación Empresarial v OHIM — Maglificio Barbara
(Mirtillino)

(Case T-427/07)

(2008/C 22/89)

Language in which the application was lodged: Spanish

Parties

Applicant: Mirto Corporación Empresarial, S.L. (Madrid, Spain)
(represented by: E. Armijo Chávarri, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Maglificio Barbara Srl

Form of order sought

— Annul the Decision of the Second Board of Appeal of OHIM
of 28 August 2007 in Case R 875/2006-2 and order
expressly that OHIM pay the costs.

Applicant: Agencja Wydawnicza
(Częstochowa, Poland)
adviser)

z
(represented by D. Rzążewska,

Technopol

sp.

o.o.
legal

Pleas in law and main arguments

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
(Trade
and Designs) of 3 September 2007 in Case

Office for Harmonisation in the Internal Market
Marks
R 1275/2006-4 in its entirety;

— order the defendant to pay the costs.

Applicant for a Community trade mark: Maglificio Barbara Srl

Community trade mark concerned: Figurative mark ‘Mirtillino’ for
goods in Classes 3, 18 and 25 (application No 3 252 467)

Proprietor of the mark or sign cited in the opposition proceedings:
Creaciones Mirto, S.A.; the applicant following transfer of the
marks at issue in the opposition proceedings.

Mark or sign cited in opposition: Word mark ‘MIRTO’ (Community
trade mark No 1 653 351) for goods in Classes 3, 18 and 25
and a number of other national word and figurative marks
‘MIRTO’.