Case T-123/08: Action brought on 14 March 2008 — Spitzer v OHIM — Homeland Housewares (Magic Butler)
Date: 2008-03-14
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), household article, household electrical appliance, machinery, trade-mark law

9.5.2008

EN

Official Journal of the European Union

C 116/27

Action brought on 10 March 2008 — PC-Ware Information
European
Technologies BV v Commission of

the

Communities

(Case T-121/08)

(2008/C 116/49)

Language of the case: Dutch

Parties

Applicant: PC-Ware Information Technologies BV (Amsterdam,
Netherlands) (represented by: L. Devillé, lawyer)

Defendant: Commission of the European Communities

Secondly, the applicant submits that it is apparent that the
successful offer infringes Article 40 of
the abovementioned
Belgian Law of 14 July 1991. According to the applicant, the
Commission should have refused the successful offer pursuant
to Article 55 of Directive 2004/18/EC (1), Article 139(1) and
Article 146(4) of Regulation No 2342/2002 (2) and the princi-
ples of good administration.

(1) Directive 2004/18/EC of

the European Parliament and of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ 2004 L 134, p. 114).
Euratom) No

of
23 December 2002 laying down detailed rules for the implementa-
tion of Council Regulation (EC, Euratom) No 1605/2002 on the
Financial Regulation applicable to the general budget of the European
Communities (OJ 2002 L 357, p. 1).

2342/2002

(EC,

(2) Commission Regulation

Form of order sought

— Declare the action for annulment admissible;

— Annul the decision of the Directorate-General of the Euro-
pean Commission, communicated to the applicant by letter
of 11 January 2008, which rejected the applicant's tender
for public procurement contract DIGIT/R2/2007/022 —
to the successful
LAR 2007 and awarded the contract
tender;

Action brought on 14 March 2008 — Spitzer v OHIM —
Homeland Housewares (Magic Butler)

(Case T-123/08)

(2008/C 116/50)

Language in which the application was lodged: German

— Declare that

the Commission's action was unlawful and

gives rise to the Commission's liability;

Parties

— In the alternative, if the contract has already been carried
out when the Court gives judgment or the decision can no
longer be declared void, order the Commission to pay
damages of EUR 654 962,38 as compensation for the loss
suffered by the applicant in regard to that procedure;

— Order the Commission to pay the costs of the proceedings

and other costs even if the action is dismissed.

Pleas in law and main arguments

took part

in public procurement procedure
The applicant
DIGIT/R2/2007/022 — LAR 2007 — Large account reseller
Microsoft products (LAR 2007)
(OJ 2007 S 183-223062),
whose objective was to establish a framework contract for a
single source purchase channel, covering the acquisition of
Microsoft software products and licences. The applicant contests
the Commission's decision to award that contract to another
undertaking.

In support of its application, the applicant submits, first, that
insufficient reasons are given for the decision. The applicant
states that upon the submission of its offer it stated expressly
that
it gave the highest possible reduction on the basis of
Article 40 of the Belgian Law of 14 July 1991 on trade practices
and consumer information and protection, which prohibits sales
at a loss. The Commission failed to give sufficient reasons in the
decision with regard to the application of that prohibition and
compliance with the principle of equal treatment.

Applicant: Harald Spitzer (Hörsching, Austria) (represented by: T.
Schmitz, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Homeland Housewares, LLC (Los Angeles, United States of
America)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of

7 January 2008 (Case R 1508/2006-1);

— reject

the opposition entered by Homeland Housewares,
LLC, against the word mark for which registration is sought,
‘Magic Butler’ No 4 109 906;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Harald Spitzer.

Community trade mark concerned: The word mark ‘Magic Butler’
for goods in Classes 7 and 21 (application No 4 109 906)

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.