Case T-125/08: Action brought on 14 March 2008 — Atlantean v Commission
Date: 2008-03-14
Institutions: Court of First Instance
Subjects: European Commission, Ireland, action for annulment (EU), fishing fleet, fishing vessel, infringement of EU law, transport regulations

C 116/28

EN

Official Journal of the European Union

9.5.2008

Proprietor of the mark or sign cited in the opposition proceedings:
Homeland Housewares, LLC

Mark or sign cited in opposition: The word mark ‘MAGIC BULLET’
for goods in Class 7 (Community trade mark 4 100 483) and
the word mark ‘THE MAGIC BULLET’ for goods in Class 7
(Community trade mark 3 584 885)

Ireland in respect of the applicant's vessel Atlantean to increase
capacity under the fourth multi-annual guidance programme
(MAGP IV) applicable for the reasons of improvements in safety,
navigation at sea, hygiene, product quality and working condi-
tions for vessels of more than 12 m in length overall (1). This
decision was annulled by the Court's judgment of 13 June 2006
in so far as it applied to the applicant's vessel Atlantean (2).

Decision of the Opposition Division: Opposition upheld in part.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EG)
No 40/94 (1), because there is no likelihood of confusion
between the marks in conflict.

(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 14 March 2008 — Atlantean v
Commission

(Case T-125/08)

(2008/C 116/51)

Language of the case: English

Parties

Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M.
Fraser, Solicitor, G. Hogan, E. Regan and C. Toland, Barristers)

Defendant: Commission of the European Communities

Form of order sought

— order the defendant to make good to the applicant damages
caused to it by Commission Decision 2003/245/EC of
4 April 2003 insofar as it unlawfully rejected the request by
Ireland to increase the capacity of the vessel MFV Atlantean,
the said damages amounting to EUR 7 419 522, subject to
updating in the course of proceedings, together with interest
from the 4 April 2003 until the final settlement and default
interest in the event of delay, after delivery of the judgment,
in payment of the sums awarded;

— order the defendant to pay the applicant's costs.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for non-
contractual
liability arising from the losses it claims to have
suffered as a result of Commission Decision 2003/245/EC of
4 April 2003 which provided for the rejection of the request by

its contentions that

The applicant states in support of
in
adopting the annulled decision the Commission breached a
number of superior rules of law: it not only lacked the compe-
tence to make the decision, as found by the Court in its judg-
ment, but it also infringed the principle of legal certainty, the
principle of protection of legitimate expectations, the principle
of non-retroactivity,
the
principle of proportionality, its obligation to state reasons laid
down in Article 253 EC, the right of the applicant to be heard
and it misused its powers. The applicant also states that the
Commission was manifestly and gravely in disregard of
the
limits of its discretion. It claims that in such circumstances, the
mere infringement of Community law establishes a sufficiently
serious breach of law.

the principle of non-discrimination,

the applicant claims that

it has suffered and
Furthermore,
continues to suffer substantial
loss and damage as a direct
consequence of the Commission adopting the annulled decision
as it was required to purchase additional polyvalent replacement
capacity. Therefore,
its damage is
actual and certain.

the applicant claims that

(1) OJ 2003 L 90, p. 48.
(2) Case T-192/03, Atlantean Ltd v Commission [2006] ECR II-42.

Action brought on 20 March 2008 — Okalux v OHIM —
Ondex (ONDACELL)

(Case T-126/08)

(2008/C 116/52)

Language in which the application was lodged: German

Parties

Applicant: Okalux GmbH (Marktheidenfeld, Germany)
sented by: M. Beckensträter, Rechtsanwältin)

(repre-

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

Other party to the proceedings before the Board of Appeal of OHIM:
Ondex S.A.S.