Case T-430/07: Action brought on 23 November 2007 — Bodegas Montebello v OHIM — Montebello (MONTEBELLO RHUM AGRICOLE)
Date: 2007-11-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), alcoholic beverage, trade-mark law

C 22/48

EN

Official Journal of the European Union

26.1.2008

Decision of the Opposition Division: Partly upheld the opposition.

that effective working time could have amounted to fewer
than the 7 092,88 hours claimed by CEVA.

Decision of the Board of Appeal: Annulment of the decision under
appeal and dismissal of the opposition.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) since there is a likelihood of confusion between
the conflicting marks.

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

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

Action brought on 22 November 2007 — Centre d'Étude
et de Valorisation des Algues v Commission

(Case T-428/07)

(2008/C 22/90)

Language of the case: French

Parties

Applicant: Centre d'Étude et Valorisation des Algues SA (CEVA)
(Pleubian, France) (represented by: J.-M. Peyrical, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— as the principal claim,

find procedural

irregularity and
breach of the principle that both parties should be heard and
therefore annul Commission debit note No 3240908670 of
20 September 2007 and order the Commission to repay the
debit note at issue to CEVA;

Pleas in law and main arguments

By this action, the applicant seeks annulment of the debit note
by which the Commission ordered the repayment in full of the
advances paid to the applicant in relation to the SEAHEALTH
contract No QLK1-CT-2002-02433, concerning the project
‘Food, Nutrition and Health’ which was part of the ‘Quality of
Life and Management of Living Resources’ key action (1).

In support of its application, it relies on a plea in law alleging
breach of the rights of the defence inasmuch as the Commis-
sion,
in breach of the principle that both parties should be
heard, based its order for repayment on the timesheets and
conclusions of OLAF of which the applicant had no knowledge.

In the alternative, the applicant challenges the Commission's
application of Article 3.5 of Annex II and its finding that the
facts in this case were sufficiently serious for it to rely on the
concept of serious financial
irregularities justifying full repay-
ment of the advances.

(1) Fifth framework programme of

the European Community for
technological development and demonstration activities

research,
(1998-2002).

Action brought on 23 November 2007 — Bodegas
Montebello v OHIM — Montebello (MONTEBELLO RHUM
AGRICOLE)

(Case T-430/07)

(2008/C 22/91)

Language in which the application was lodged: Spanish

— in the alternative, find that the errors found in the audit
report are not sufficiently serious for Article 3.5 of Annex II
to the contract to be applied; annul Commission debit note
No 3240908670 of 20 September 2007 in so far as it
claims full repayment of the sums paid to CEVA under the
SEAHEALTH contract; and order the Commission to repay
the debit note at issue in favour of CEVA;

— in the further alternative, appoint an expert of the Court of
First Instance's own choice with the task of: taking up again
CEVA's method of calculating the time spent on projects;
comparing that method with the SEAHEALTH contract and
with the actual costs submitted in the cost statements;
stating, as a percentage, the difference between the total
errors in the registration of work time as presented to the
Commission and the total registration of that work time
according to the calculation method applicable from that
time on at CEVA; carrying out an assessment of the direct
working time needed to carry out CEVA's tasks in the
context of the SEAHEALTH contract; and stating whether

Parties

Applicant: Bodegas Montebello, S.A.
(repre-
sented by: T. Andrade Boué, M.I. Lehmann Novo, and A.
Hernández Lehmann, lawyers)

(Montilla, Spain)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Montebello (limited company) (Guadalupe, France)

Form of order sought

— annulment of OHIM's decision of 7 September 2007 in Case

R 223/2007-2;

26.1.2008

EN

Official Journal of the European Union

C 22/49

— rejection of Community trade mark No 2.666.386;

— order OHIM to pay the costs including those of the inter-

vener.

applied Article 11 of Council Regulation No 2200/96 (2)
in
finding that the French Government had failed to observe the
conditions laid down in that provision for the recognition of
producers' organisations in the fruit and vegetable sector.

Pleas in law and main arguments

Applicant
company)

for a Community

trade mark: Montebello (limited

Community trade mark concerned: figurative mark ‘MONTEBELLO
Rhum Agricole’
in
(application No 2.266.386)
Class 33 (alcoholic beverages, except beers).

for goods

Proprietor of the mark or sign cited in the opposition proceedings: the
applicant.

Mark or sign cited in opposition: Spanish word mark ‘MONTE-
BELLO’ (No 1.148.196) for goods in Class 33.

Decision of the Opposition Division: opposition upheld.

Decision of the Board of Appeal: decision of the Opposition Divi-
sion upheld and annulled.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC)
No 40/94 on the Community trade mark.

(1) Notified under document number C(2007) 4477, OJ 2007 L 261,

p. 28.

(2) Council Regulation (EC) No 2200/96 of 28 October 1996 on the
common organisation of the market in fruit and vegetables (OJ 1996
L 297, p. 1)

Action brought on 22 November 2007 — Ryanair v
Commission

(Case T-433/07)

(2008/C 22/93)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Action brought on 29 November 2007 — France v
Commission

Defendant: Commission of the European Communities

(Case T-432/07)

(2008/C 22/92)

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and
A.-L. During, Agents)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision 2007/647/EC of 3 October
2007 excluding from Community financing certain expendi-
ture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF) (1),
in so far as it excludes certain
expenditure incurred by the applicant for producers' organi-
sations in the fruit and vegetable sector in respect of the
financial years 2003 and 2004;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of the contested decision on
the Commission wrongly interpreted and
the ground that

Form of order sought

— To declare in accordance with Article 232 EC that

the
Commission has failed to act pursuant to its obligations
under the EC Treaty by not having defined a position with
respect
lodged with the
Commission on 22 December 2006 followed by a letter of
formal notice of 2 August 2007;

to the applicant's complaint

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible;

— to take such further action as the Court may deem appro-

priate.

Pleas in law and main arguments

The applicant claims that the Commission has failed to act by
not having defined its position, after having been invited to do
so, under Article 232 EC, on the basis of
the applicant's
complaint filed on 22 December 2006, regarding unlawful aid
granted by Greece to Olympic Airlines and Olympic Airways
Services (‘OA/OAS’) following an arbitration ruling of the Greek
Supreme Court, ordering the Greek State to pay OA/OAS
EUR 563 million for allegedly unpaid services and the cost of
relocation to Athens' new airport.