Case T-70/08: Action brought on 12 February 2008 — Axis AB v OHIM — Etra Investigación y Desarollo (ETRAX)
Date: 2008-02-12
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), new technology, service, trade-mark law, transmission network

26.4.2008

EN

Official Journal of the European Union

C 107/31

— an order that the Commission pay its own costs and FIFA's

costs in connection with these proceedings.

and by restricting competition on related free-to-air television,
advertising and premium sports pay-television markets.

Pleas in law and main arguments

Under Article 3a of Council Directive 89/552/EEC (1) a Member
State may draw up a list of sporting or other events that are
considered to be events of ‘major importance to society’. The
events on the list cannot be the subject of exclusive broadcasting
rights which prevent a substantial proportion of the public in
that Member State from watching the event via live coverage or
deferred coverage on free television.

The applicant seeks the annulment of Commission Decision
2007/730/EC of 16 October 2007 (2) by which the Commis-
sion declared that the list drawn up by the United Kingdom
pursuant
to Article 3a(1) of Council Directive 89/552/EEC,
listing all 64 FIFA World Cup matches, was compatible with
Community law. This prevents FIFA from granting exclusive
licenses to broadcasters in respect of live broadcasting in the
United Kingdom of any of the FIFA World Cup matches.

Finally, the applicant alleges that the contested decision infringes
the provisions of the EC Treaty on the right of establishment by
restricting access to live exclusive broadcasting rights in the
United Kingdom to any of the matches played within the frame-
work of the FIFA World Cup by entrants or potential entrants
into the relevant British market.

(1) Council Directive 89/552/EEC of 3 October 1989 on the coordina-
tion of certain provisions laid down by Law, Regulation or Adminis-
trative Action in Member States concerning the pursuit of television
broadcasting activities (OJ 1989 L 298, p. 23).

(2) Commission Decision 2007/730/EC of 16 October 2007 on the
compatibility with Community law of measures taken by the United
Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC
on the coordination of certain provisions laid down by law, regu-
lation or administrative action in Member States concerning the
pursuit of television broadcasting activities (OJ 2007 L 295, p. 12).

Action brought on 12 February 2008 — Axis AB v OHIM
— Etra Investigación y Desarollo (ETRAX)

In support of its application, the applicant submits that the
Commission's decision is vitiated by an infringement of an
essential procedural requirement by failing to state reasons for
approving the inclusion of all 64 matches in the FIFA World
Cup on the list of the United Kingdom.

(Case T-70/08)

(2008/C 107/52)

Furthermore, the applicant contends that the contested decision
infringes Directive 89/552/EEC, as the procedure followed by
the British authorities for the adoption of the measure was not
clear and transparent, and as all the matches played within the
framework of the FIFA World Cup were not of major impor-
tance for the British society.

Parties

Language in which the application was lodged: English

The applicant moreover alleges that
the contested decision
infringes the applicant's property rights by preventing it from
granting exclusive licenses in respect of live broadcasting in the
United Kingdom for any of
the matches played within the
framework of the FIFA World Cup.

Applicant: Axis AB (Lund, Sweden) (represented by: J. Norderyd,
lawyer)

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

further claims

The applicant
contested decision
infringes the provisions of the EC Treaty on freedom to provide
services by depriving the applicant from licensing and broadcas-
ters from acquiring live exclusive rights to any of the FIFA
World Cup matches broadcasted in the United Kingdom.

that

the

Other party to the proceedings before the Board of Appeal: Etra Inves-
tigación y Desarollo SA (Valencia, Spain)

Form of order sought

The applicant also claims that the contested decision infringes
the provisions of the EC Treaty on competition by permitting
an abusive behaviour of a joint dominant position and/or anti-
competitive agreement for the acquisition of live broadcasting
rights to international football matches in the United Kingdom

— Annul

the decision of

the Second Board of Appeal of

27 November 2007 in Case R 334/2007-2;

— order OHIM to pay the costs.

C 107/32

EN

Official Journal of the European Union

26.4.2008

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark
‘ETRAX’ for goods and services in classes 9 and 42 — Applica-
tion No 3 890 291

Proprietor of the mark or sign cited in the opposition proceedings: Etra
Investigacion y Desarollo SA

Mark or sign cited: The national figurative marks containing the
word element ‘ETRA’ and the letters ‘I’ and ‘D’ joined by the sign
‘+’ for goods and services in classes 9 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled
the contested decision

Pleas in law: Infringement of Rule 49 of Commission Regulation
(EC) No 2868/95 (1) (‘CTMIR’) and Article 8(1)(b) of Council
Regulation (EC) No 40/94 (‘CTMR’).

The applicant claims that the Board of Appeal erred in finding
that the appeal was filed in accordance with Rule 49(1) CTMIR
which states that the Board of Appeal must reject an appeal as
inadmissible if it doesn't comply with Articles 57, 58 and 59
CTMR and Rule 48(1)(c) CTMIR. Further, the applicant contends
that since the language deficiency was not remedied by the
opponent before the expiry of the time-limit set to lodge an
appeal, namely, 12 February 2007, the Board of Appeal alleg-
edly infringed Rule 49(1) and (2) CTMIR.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ L 303, p. 1).

Action brought on 11 February 2008 — Travel Servis v
OHIM — Eurowings Luftverkehrs (smartWings)

(Case T-72/08)

(2008/C 107/53)

Language in which the application was lodged: English

Parties

Applicant: Travel Service a.s.
sented by: S. Hejdová)

(Prague, Czech Republic)

(repre-

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

Other party to the proceedings before the Board of Appeal: Eurowings
Luftverkehrs AG (Dortmund, Germany)

Form of order sought

— Alter the contested decision of the Second Board of Appeal

in Case R 1515/2006-2 as follows:

— annul the Opposition Division decision relating to oppo-
sition proceedings No B 782 351 of 29 September
2006 in its entirety;

— order the opponent to bear the costs incurred by the
applicant with respect to the opposition and the appeal
proceedings before the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative Community trade
mark ‘smartWings’ for goods and services in classes 16, 21, 37,
39, 41 and 43 — Application No 3 650 595

Proprietor of the mark or sign cited in the opposition proceedings:
Eurowings Luftverkehrs AG

Mark or sign cited: The national and international word mark
‘EuroWings’ for goods and services in classes 16 and 41, the
national and international word mark ‘EUROWINGS’ for goods
and services in classes 39 and 42 and the national word mark
‘WINGSGLASS’ for goods and services in classes 16, 39, 41
and 42

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94 and of essential procedural requirements
enshrined in Articles 73 and 79 CTMR.