Case T-489/07: Action brought on 21 December 2007 — Insight Direct USA v OHIM — Net Insight (Insight)
Date: 2007-12-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United States, action for annulment (EU), information technology industry, trade-mark law

C 64/44

EN

Official Journal of the European Union

8.3.2008

Form of order sought

— Annul the Commission's decision;

Other party to the proceedings before the Board of Appeal: Casur
S. Coop. Andaluza (Viator, Spain)

— Order the Commission to pay the costs.

Form of order sought

Pleas in law and main arguments

The applicants challenge the Commission's decision of 10 May
2007 (OJ 2007 C 227, p. 4) concerning the Flemish rules on
support for inter-modal transport via inland waterways (Aid
measure N 682/2006 — Belgium). In the contested decision the
Commission regards the support measure as compatible with
the common market and decides not to raise any objection.

In support of their application, the applicants claim that there
has been an infringement of the principle of non-discrimination
laid down in Council Regulation (EEC) No 1107/70 of 4 June
1970 on the granting of aids for transport by rail, road and
inland waterway (OJ English Special Edition, 1970(II), p. 362)
and Articles 12 and 73 EC. They state that the subsidy is avail-
able on the transhipment of containers in Flemish inland ports
when the containers enter or leave the European Union via a
Flemish sea port but not when a sea port is in another Member
State. They claim that this constitutes discrimination on grounds
of nationality.

— Annul the decision of 19 September 2007 of the First Board

of Appeal of OHIM in Case R 293/2007-1;

— direct the relevant Cancellation Division of OHIM to declare
invalid Community trade mark registration No 3 517 431
EGLÉFRUIT;

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The word mark ‘EGLÉFRUIT’ for goods
and services in classes 29, 30 and 31 — Community trade
mark No 3 517 431

Proprietor of the Community trade mark: Casur S. Coop. Andaluza

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

They also argue that the subsidy leads to a distortion of compe-
tition, as it seriously disadvantages all ports in north-west
Europe which trade with the Flemish hinterland, and particularly
the port of Rotterdam.

Trade mark right of the party requesting the declaration of invalidity:
The Community and national word and figurative marks ‘UGLI’
for goods in classes 29, 31 and 32

They also plead infringement of the obligation to investigate
and state reasons. They maintain that the Commission has failed
to investigate the consequences for competition and to explain
why an economic investigation was not necessary.

Decision of the Cancellation Division: Rejection of the request for a
declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 52(1)(a) of Council Regu-
lation No 40/94 because the Board of Appeal misapplied the
test of
likelihood of confusion between the conflicting trade
marks.

Action brought on 20 December 2007 — Cabel Hall Citrus
v OHIM — Casur (EGLÉFRUIT)

(Case T-488/07)

(2008/C 64/73)

Language in which the application was lodged: English

Action brought on 21 December 2007 — Insight Direct
USA v OHIM — Net Insight (Insight)

(Case T-489/07)

(2008/C 64/74)

Language in which the application was lodged: English

Parties

Applicant: Cabel Hall Citrus Ltd (Grand Cayman, Cayman
Islands) (represented by: C. Rogers, Barrister)

Parties

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

Applicant: Insight Direct USA, Inc. (Tempe, United States) (repre-
sented by: M. Gilbert and M. Moore, Solicitors)

8.3.2008

EN

Official Journal of the European Union

C 64/45

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

Action brought on 21 December 2007 — Notartel v OHIM
— SAT.1 SatellitenFernsehen (R.U.N.)

Other party to the proceedings before the Board of Appeal: Net
Insight AB (Stockholm, Sweden)

Form of order sought

— The decision of

the Second Board of Appeal dated
20 September 2007 in Case R 1428/2006-2 shall be
annulled and the rejection of the application for all services
in classes 37 and 42 and the rejected services in class 35 be
overturned and the application be allowed to proceed in
respect of all of the services for which the application was
published.

— The Office and other parties shall bear their own costs and

pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘Insight’ for
in classes 35, 36, 37 and 42 — application
services
No 3 309 002

Proprietor of the mark or sign cited in the opposition proceedings: Net
Insight AB

Mark or sign cited: The Community and national word mark
‘NET INSIGHT’ for goods and services in classes 9, 37 and 41

Decision of the Opposition Division: Opposition partially upheld
and partially rejected

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: According to the applicant, the Board of Appeal
wrongly identified the dominant and distinctive elements of the
earlier mark and did not give consideration to all the relevant
factors in assessing the similarity of the relevant goods and
services. Furthermore, the Board of Appeal failed to consider all
the relevant factors in relation to the global appreciation test
when determining the likelihood of confusion between the
conflicting marks.

(Case T-490/07)

(2008/C 64/75)

Language in which the application was lodged: Italian

Parties

Applicant: Notartel SpA — (Notaries'
information technology
company) (Rome, Italy) (represented by: M. Bosshard and M.
Balestriero, avvocati)

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

Other party to the proceedings before the Board of Appeal of OHIM:
SAT.1 SatellitenFernsehen GmbH (Berlin, Germany)

Form of order sought

The applicant claims that the Court should:

— Primarily, annul,

in part, the decision of OHIM's Fourth
Board of Appeal of 22 October 2007 in Case R 1267/
2006-4, in so far as it upheld the opposition;

— Alternatively, annul, in part, the decision of OHIM's Fourth
Board of Appeal of 22 October 2007 in Case R 1267/
2006-4, in so far as it upheld the opposition in respect of
the mark sought for Class 38;

— In any event, reject any possible future contrary application
or claim, by way of confirming the decision in so far as it is
not impugned in this case;

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘R.U.N.’ (Community
trade mark application No 1,069,863 for services in Classes 35,
38 and 42, as regards these proceedings).

Proprietor of the mark or sign cited in the opposition proceedings:
SAT.1 SatellitenFernsehen GmbH.