Case T-138/08: Action brought on 3 April 2008 — Cavankee Fishing and Others v Commission
Date: 2008-04-03
Institutions: Court of First Instance
Subjects: EC Decision, EC action to establish liability, European Commission, Ireland, eligibility criteria, financial loss, fishing fleet, fishing regulations

7.6.2008

EN

Official Journal of the European Union

C 142/33

Pleas in law and main arguments

Pleas in law and main arguments

for Community

rights: Konsortium
plant
Applicant
Südtiroler Baumschuler, following the transfer of the variety at
issue, Schniga Srl (Application No 1999/0033)

variety

Community plant variety right sought for: Gala-Schnitzer

the application for a
Registered Community trade mark subject of
declaration of
the
colour combination of green and yellow for goods in classes 7
and 12 — Community trade mark No 63 289

invalidity: A figurative mark consisting of

Proprietor of the Community trade mark: Deere & Company

Decision of the CPVO: Community plant variety right granted
(Decisions No EU 18759, OBJ 06-021 and OBJ 06-022)

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

Appeal before the Board of Appeal
Brookfield New Zealand Ltd

lodged by: SNC Elaris and

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

Decision of the Board of Appeal: Annulment of the decision of the
CPVO

Pleas in law: Infringement of Article 59(3) of Council Regulation
No 2100/94 (1) as the objections to the Community plant
variety right do not comply with the said provision;
the
disputed decision is based on requirements to be fulfilled by the
applicant beyond the legislative framework;
the power and
discretion of the President of CPVO have been wrongly assessed.

(1) Council Regulation (EC) No 2100/1994 of 27 July 1994 on Com-

munity plant variety rights (OJ 1994 L 227, p. 1).

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(3), 52(1)(c) in connection
with Article 8(4) and Article 73(1) of Council Regulation
No 40/94, as:

— the Board of Appeal ought to have interpreted Article 7(3)
should have imposed a
very strictly and, accordingly,
rigorous burden of proof on the other party to the proceed-
ings;

— the Board of Appeal failed to recognize the prior de facto

trade mark of the applicant; and

— the Board of Appeal used contradictory reasoning in its deci-

sion.

Action brought on 9 April 2008 — BCS v OHIM — Deere
(Combination of colours green and yellow)

Action brought on 3 April 2008 — Cavankee Fishing and
Others v Commission

(Case T-137/08)

(2008/C 142/60)

Language in which the application was lodged: English

(Case T-138/08)

(2008/C 142/61)

Language of the case: English

Parties

Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V.
Jandoli, F. Santonocito, lawyers)

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

Other party to the proceedings before the Board of Appeal: Deere &
Company (Moline, United States)

Form of order sought

— Annul

the Decision of

the Second Board of Appeal of

16 January 2008 in case R 0222/2007-2; and

Parties

Limited

(Lifford,

(Killybegs,

Ireland), Mullglen

Ireland), Brendan Gill

Applicants: Cavankee Fishing Co. Ltd (Lifford, Ireland), Ocean
Trawlers
Limited
(Balbriggan, Ireland), Eamon McHugh (Killybegs, Ireland), Joseph
Ireland),
Doherty (Burtonport,
Eileen Oglesby (Burtonport, Ireland), Noel McGing (Killybegs,
Ireland), Larry Murphy (Castletownbere, Ireland), Thomas Flah-
Ireland), Pauric Conneely (Claregalway,
erty (Aran Islands,
Ireland),
Ireland), Cathal
Boyle (Killybegs, Ireland), Eugene Hannigan (Milford, Ireland),
Peter McBride (Downings, Ireland), Hugh McBride (Downings,
Ireland), Patrick Fitzpatrick (Aran Islands,
Ireland), Patrick
O'Malley (Galway, Ireland), Cecil Sharkey (Clogherhead, Ireland)
(represented by: A. Collins, SC, N. Travers, Barrister, D. Barry,
Solicitor)

Island Trawlers Limited (Killybegs,

— order OHIM to pay the costs.

Defendant: Commission of the European Communities

C 142/34

EN

Official Journal of the European Union

7.6.2008

Form of order sought

— order the Commission to pay the following sums (excluding
interest), increased by the costs of borrowing, further up-to-
date particulars of which will be provided at
the oral
hearing, by way of damages to each of the applicants:

Pelagic

— Cavankee Fishing Company

2 748 276,00 EUR

— Ocean Trawlers Ltd

— Mullglen Ltd.

— Eamon McHugh

— Joseph Doherty

— Brendan Gill

— Eileen Oglesby

— Noel McGing

— Larry Murphy

— Thomas Flaherty

— Pauric Conneely

Polyvalent

— Island Trawlers Limited

— Cathal Boyle

— Eugene Hannigan

— Peter McBride

— Hugh McBride

— Partick Fitzpatrick

— Patrick O'Malley

(a) ‘Capal Ban’

(b) ‘Capal Or’

— Cecil Sharkey

6 740 000,00 EUR

2 690 000,00 EUR

3 036 187,00 EUR

2 640 408,00 EUR

2 717 665,00 EUR

2 994 349,00 EUR

2 444 000,00 EUR

4 150 000,00 EUR

2 140 000,00 EUR

1 930 000,00 EUR

672 000,00 EUR

651 200,00 EUR

125 000,00 EUR

106 848,00 EUR

106 848,00 EUR

177 573,00 EUR

205 698,00 EUR

496 800,00 EUR

205 697,88 EUR

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In the present case, the applicants are bringing an action for
liability arising from the losses they claim to
non-contractual
have suffered as a result of
the Commission's Decision
2003/245/EC of 4 April 2003 on the requests submitted by the
Member States (1) in so far as it provided for the rejection of the
request by Ireland in respect of the applicants' vessels. This deci-
sion was partially annulled by the Court's judgment of 13 June
2006 (2).

The applicants state in support of their contentions that in
adopting the annulled decision the Commission breached a
number of superior rules of law intended to confer rights on
individuals by grave and manifest disregard of the discretion
conferred upon the Commission by Article 4(2) of Decision
97/413/EC (3) as found by the Court in its judgment in the
Joined Cases T-218/03 to T-240/03. The applicants claim that
the Commission also infringed: the principle of equal treatment,
the principle of care and sound administration, the freedom to

pursue a trade or profession and the principle of proportion-
ality. They claim that in such circumstances, the mere infringe-
ment of Community law establishes a sufficiently serious breach
of law.

Furthermore, the applicants claim that they have suffered and
continue to suffer substantial loss and damage as a direct conse-
quence of the Commission adopting the annulled decision as
they were required to purchase on the market
tonnage to
replace safety tonnage requested but not granted and, for some
applicants, as regards to the losses flowing from days lost at sea.
Therefore, the applicants claim that their damage is actual and
certain.

As proof of the existence of a causal connection between the
conduct and damage at issue, the applicants state that if the
Commission had not acted unlawfully in refusing properly to
consider the applications for safety tonnage submitted by the
applicants, none of them would have been required to purchase
additional tonnage.

to

(1) Decision C(2003) 1113 final on the requests received by the
Commission
guidance
the
programme (MAGP IV) objectives to take into account improvements
on safety, navigation at sea, hygiene, product quality and working
conditions for vessels of more than 12 m in length overall (OJ 2003
L 90, p. 48).

fourth multi-annual

increase

(2) Joined Cases T-218/03 to T-240/03, Boyle and Others v Commission

[2006] ECR II-1699.

(3) Council Decision of 26 June 1997 concerning the objectives and
detailed rules for restructuring the Community fisheries sector for
the period from 1 January 1997 to 31 December 2001 with a view
to achieving a balance on a sustainable basis between resources and
their exploitation (OJ L 175, p. 27).

Action brought on 11 April 2008 — Loufrani v OHIM
(half-smiley)

(Case T-139/08)

(2008/C 142/62)

Language of the case: English

Parties

Applicant: Franklin Loufrani (London, United Kingdom) (repre-
sented by: A. Deutsch, lawyer)

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

Form of order sought

— Annul

the Decision of

the Fourth Board of Appeal of

7 February 2008 in case R 0958/2007-4); and

— order OHIM to pay the costs.