Case T-367/07: Action brought on 17 September 2007 — Dow AgroSciences and Others v Commission
Date: 2007-11-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dangerous substance, marketing restriction, pharmaceutical product, plant health legislation, plant health product, withdrawal from the market

C 283/34

EN

Official Journal of the European Union

24.11.2007

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
invalidity: The word and figurative marks
declaration of
‘TRAXDATA’ and ‘TEAM TRAXDATA’ for goods and services in
classes 9, 16, 36, 41 and 42 — Community trade marks
No 877 910, 877 779, 7 393 and 1 252 725

Proprietor of the Community trade mark: Ritrax Corp. Ltd

— the opposition No B 311 318 dated 2 October 2000 be
rejected as far as this opposition was upheld by the decision
of the Opposition Division of 21 March 2006;

— the defendant be ordered to bear the costs of the proceed-

ings;

— the intervener be ordered to bear the costs of the proceed-

ings before the Office for Harmonisation.

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Pleas in law and main arguments

Trade mark right of the party requesting the declaration of invalidity:
The unregistered corporate name ‘TRAXDATA FRANCE SARL’
and trade name ‘TRAXDATA’
for the following goods and
‘consultancy, delivery and sale of computer consum-
services:
ables, hardware and accessories’

Decision of the Cancellation Division: Rejection of the applicant's
requests for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal infringed Article 52(1)(c) read
in conjunction with Article 8(4) of Council Regulation No 40/94
by finding that the applicant had not furnished proof that it
continues to make use of ‘TRAXDATA’ and by improper appli-
cation of the criteria of likelihood of confusion between the
conflicting trade marks.

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘P&G PRESTIGE
BEAUTE’ for inter alia goods in class 3

Proprietor of the mark or sign cited in the opposition proceedings:
Prestige Cosmetics Srl

Mark or sign cited: The national figurative marks ‘prestige’ for
goods in class 3

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 since there is no likelihood of confusion
between the trade mark applied for and the earlier marks as the
goods covered by the trade marks are dissimilar and the trade
marks clearly differ.

Action brought on 24 September 2007 — Procter &
Gamble v OHIM — Prestige Cosmetics (P&G PRESTIGE
BEAUTE)

(Case T-366/07)

(2007/C 283/62)

Language in which the application was lodged: English

Action brought on 17 September 2007 — Dow
AgroSciences and Others v Commission

(Case T-367/07)

(2007/C 283/63)

Language of the case: English

Parties

Parties

Applicant: The Procter & Gamble Company (Cincinnati, United
States) (represented by: K. Sandberg, lawyer)

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

Other party to the proceedings before the Board of Appeal: Prestige
Cosmetics Srl (Anzola Emilia, Italy)

Form of order sought

Applicants: Dow AgroSciences Ltd (Hitchin, United Kingdom),
BV (Rotterdam, Netherlands), Dow
DOW AgroSciences
AgroSciences Danmark A/S (Lyngby-Taarbæk, Denmark), Dow
AgroSciences GmbH (Stade, Germany), Dow AgroSciences SAS
(Mougins, France), Dow AgroSciences Export SAS (Mougins,
France), Dow AgroSciences Hungary kft (Budapest, Hungary),
Dow AgroSciences Italia Srl (Milan, Italy), Dow AgroSciences
Polska
(Warsaw, Poland), Dow AgroSciences
Distribution SAS (Mougins, France), Dow AgroSciences Iberica,
SA (Madrid, Spain), Dow AgroSciences s.r.o.
(Prague, Czech
Republic) and Dow AgroSciences LLC (Indianapolis, United
States) (represented by: K. Van Maldegem and C. Mereu, lawyers)

z o.o.

sp.

— The decision of the Second Board of Appeal of 19 July

2007 in Case R 681/2006-2 be overruled;

Defendant: Commission of the European Communities

24.11.2007

EN

Official Journal of the European Union

C 283/35

Form of order sought

2. Breach of European Community law.

— Order

the

annulment

of

Commission

Decision

2007/437/EC;

— declare the illegality and inapplicability vis-à-vis the first
its Haloxyfop-R dossier of

applicant and the review of
Article 20 of Commission Regulation (EC) No 1490/2002;

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicants
are identical or similar to those relied on in Case T-326/07
Cheminova and Others v Commission.

Action brought on 26 September 2007 — Lithuania v
Commission

(Case T-368/07)

(2007/C 283/64)

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas,
Agent)

Defendant: Commission of the European Communities

Form of order sought

— declare Commission Decision C(2007) 3407 final of 13 July

2007 (1) to be invalid;

— order the Commission of the European Communities to pay

the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the contested decision, of which it
was notified on 16 July 2007,
is unlawful and sets out the
following grounds in law:

1. The Commission exceeded its powers.

The applicant submits that, in taking a unilateral decision in
regard to the definitive content of Lithuania's national alloca-
tion plan, the Commission exceeded the powers conferred
on it by Directive 2003/87/EC inasmuch as, while the provi-
sions of that directive empower the Commission to assess
the national allocation plans prepared by the Member States,
they do not confer powers on it to determine total quantities
of pollution emission allowances while overlooking entirely
the national allocation plans prepared and submitted by the
Member States.

2.1. Failure

to have

regard for

the objectives of Directive
2003/87/EC: by deciding, in the contested decision, on
a national level for emissions over the period 2008 to
2012 which is lower than that required in the light of
the obligations assumed by Lithuania pursuant to the
Kyoto Protocol
to the United Nations Framework
Convention on Climate Change, the Commission failed
to have regard for the actual objectives of Directive
2003/87 as an effective instrument, from the economic
point of view,
to the obligations
assumed by the parties to the Kyoto Protocol in respect
of greenhouse gas emissions.

for giving effect

2.2. Infringement of the principles of sound administration and
genuine cooperation: the contested decision infringes the
principles of sound administration and genuine coop-
eration inasmuch as the Commission, having disre-
garded the assessment made when the national Lithua-
nian allocation plan was being prepared and having
essentially failed to consult with Lithuania, carried out a
separate assessment based on its own selected metho-
dology for the purpose of determining the maximum
quantity of pollution emission allowances.

2.3. Breach of

in disregard of

the provisions of Directive 2003/87/EC and
infringement of the principle of legal certainty: the contested
decision breaches Articles 9(1) and 11(2) of Directive
2003/87 inasmuch as,
the figures
submitted in the Lithuanian national allocation plan,
and rejecting the method of calculation applied by
Lithuania as being inappropriate, the Commission relied
exclusively and solely on the figures obtained through
application of the method which it itself had selected
for the purpose of determining the maximum quantity
of pollution emission allowances to be allocated. More-
over, in applying that methodology, of which Lithuania
knew nothing in advance, the Commission infringed
the principle of legal certainty.

2.4. Infringement of

the principle of non-discrimination:

the
contested decision infringes the principle of non-discri-
mination inasmuch as the Commission, having applied
its own selected method for determining the maximum
quantity of pollution emission allowances,
failed to
have regard to the specific situation of Lithuania. The
decision has also resulted in situations which are essen-
tially different being treated in the same way.

2.5. Non-compliance with Article 9(1) and (3) of Directive
2003/87/EC and with the fourth criterion in Annex III to
that directive: the contested decision is in breach of the
obligation contained in Article 9 of Directive 2003/87
and based on the criteria listed in Annex III thereto,
inasmuch as it fails, without reason, to take account of
the fourth criterion in that annex and of the need in
Lithuania to increase electricity generation in plants
burning fossil fuel as a result of the undertaking given
to shut down the Ignalina atomic power station by
2009.