Case T-126/08: Action brought on 20 March 2008 — Okalux v OHIM — Ondex (ONDACELL)
Date: 2008-03-20
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), building materials, building slab, trade-mark law

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.

9.5.2008

EN

Official Journal of the European Union

C 116/29

Form of order sought

Form of order sought

— Annul

the decision of

the Fourth Board of Appeal of
22 January 2008, received on 24 January 2008, and declare
that the opposition of 29 August 2006 is admissible;

— order the defendant to pay the allowable costs, including the
costs of the original proceedings (including the costs of the
intervener).

Pleas in law and main arguments

Applicant for a Community trade mark: Ondex S.A.S.

Community trade mark concerned: The trade mark ‘ONDACELL’ for
goods and services in Classes 6, 17 and 19 (application
No 4 755 971).

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant.

Decision of the Opposition Division: The notice of opposition is
deemed not to have been entered.

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

Pleas in law: Infringement of Articles 5 and 8 of Regulation (EC)
No 2869/95 (1), Decision No EX-96-1 (2) and Communication
No 5/96 (3).

(1) Commission Regulation (EC) No 2869/95 of 13 December 1995 on
the fees payable to the Office for Harmonization in the Internal
Market (Trade Marks and Designs) (OJ 1995 L 303, p. 33).

(2) Decision No EX-96-1 of the President of the Office of 11 January
1996 concerning the conditions for opening current accounts at the
Office (OHIM OJ 1996, 48).

(3) Communication No 5/96 of the President of the Office, of 8 August

1996, concerning current accounts (OHIM OJ 1996, 1461).

— Annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) (OHIM) of 30 January 2008 in Case
R-1609/2006-4;

— As a consequence of

that annulment, grant

trade mark
application 3109006, not only for the services in Class 39
the opposition
(already granted upon the dismissal of
B690695 as regards those services, which has now become
res judicata), but also for the remaining goods and services
covered by the application in Classes 19, 21 and 40, and

— Order OHIM, and the other parties before the Court, to pay
the costs of
should they be
the present proceedings
contested, and reject the claims of OHIM and the other
parties before the Court.

Pleas in law and main arguments

Applicant for a Community trade mark: Gres La Sagra, SL.

Community trade mark concerned: Figurative mark ‘VENATTO
(Application No 3 109 066) for goods and
(marble stone)’
services in Classes 19, 21, 39 and 40.

Proprietor of the mark or sign cited in the opposition proceedings:
CERAMICALCORA, SA.

Mark or sign cited in opposition: Spanish trade mark for the sign
‘VENETO (céramicas)’ (No 2 115 543; 2 056 688; 2 056 689
and 2 056 699) for goods and services in Classes 27, 19, 21
and 39 respectively.

Decision of the Opposition Division: Opposition upheld in part.
The Opposition Division held that there was a likelihood of
confusion in the relevant territory for the goods and services at
issue in Classes 19, 21 and 40, but that there was no such likeli-
hood of confusion in relation to those services at issue in
Class 39.

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

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Action brought on 31 March 2008 — Gres La Sagra v
OHIM — Ceramicalcora (VENATTO MARBLE STONE)

(Case T-130/08)

(2008/C 116/53)

Language in which the application was lodged: Spanish

Order of the Court of First Instance of 13 March 2008 —
ASTER v Commission

Parties

Applicant: Gres La Sagra, SL (Alameda de la Sagra, Spain) (repre-
sented by: T. Villate Consonni, lawyer, and J. Calderón Chavero,
lawyer)

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

(Case T-409/05) (1)

(2008/C 116/54)

Language of the case: Italian

The President of the Court of First Instance (Fifth Chamber) has
ordered that the case be removed from the register.

Other party to the proceedings before the Board of Appeal of OHIM:
Ceramicalcora, SA (Alcora, Spain)

(1) OJ C 22, 28.1.2006.