Case T-207/08: Action brought on 9 June 2008 — Habanos v OHIM — Tabacos de Centroamérica
Date: 2008-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), tobacco industry, trade-mark law

C 209/56

EN

Official Journal of the European Union

15.8.2008

Pleas in law and main arguments

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

In the present case, the applicants seek partial annulment of
Commission Decision 2008/166/EC, State Aid No C 39/06 (ex
NN 94/2005) of 13 November 2007 concerning the First Time
Shareholders Scheme implemented by the United Kingdom (1).
In the contested decision the Commission found that the aid
it
was
concerned aid granted for the first time acquisition of a share in
a second-hand fishing vessel and required the United Kingdom
to recover the aid granted. The applicants are the beneficiaries
of the aid to be recovered.

incompatible with the common market as

far as

The applicants seek annulment of the contested decision on the
following grounds:

— The Commission erred in law in finding that all payments
made for first time acquisition of a share in a second-hand
fishing vessel were incompatible with the common market
and had to be repaid; the applicants claim that the awarded
grants fall within the scope of Commission Regulation
875/2007 (2) and should be therefore considered de minimis
aids compatible with the common market; they claim that
Articles 1(2) and Articles 3 to 5 of the contested decision
unlawfully extend to beneficiaries of aid who complied in
substance with the relevant Community guidelines;

— The Commission erred in law in finding that the recovery of
these payments would be compatible with Article 14(1) of
Council Regulation (EC) No 659/1999 (3) as well as with the
general principles of legal certainty and the protection of
legitimate expectations and of equality of treatment.

(1) OJ 2008 L 55, p. 27.
(2) Commission Regulation (EC) No 875/2007 of 24 July 2007 on the
application of Articles 87 and 88 of the EC Treaty to de minimis aid
in the fisheries sector and amending Regulation (EC) No 1860/2004,
OJ 2007 L 193, p. 6.

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ 1999 L 83, p. 1).

Action brought on 9 June 2008 — Habanos v OHIM —
Tabacos de Centroamérica

(Case T-207/08)

(2008/C 209/101)

Other party to the proceedings before the Board of Appeal of OHIM:
Tabacos de Centroamérica, SL (Pozuelo de Alarcón, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
OHIM of 31 March 2008, and declare that there is a simi-
larity, and a likelihood of confusion, between the composite
mark KIOWA and the earlier composite marks COHIBA,
which designate identical profits, and a intent, on the part of
the applicant for registration, of undue profit from/detri-
ment to the distinctive character and or the reputation of
the earlier COHIBA marks cited, and thus refuse registration
of the Community mark No 3.963.931 KIOWA (composite);
the OHIM
or,
referred to, and order that the file be sent back to the
Second Board of Appeal of the OHIM so that the claims and
evidence relating to Article 8(5) of Regulation 40/94 be
analysed and examined, and

in the alternative, annul

the decision of

— order OHIM to pay the costs of all instances, including the

fees of the applicant's representatives.

Pleas in law and main arguments

Applicant for a Community trade mark: Tabacos de Centroamérica,
SL

Community trade mark concerned: Figurative mark ‘KIOWA’
respect of goods in Class 34 (application No 3.963.931)

in

Proprietor of the mark or sign cited in the opposition proceedings:
Corporación Habanos, SA, which operates under the business
name of Habanos, SA.

Mark or sign cited in opposition: Figurative mark ‘COHIBA’ (Com-
munity mark No. 3.323.292), word mark ‘COHIBA’ (Spanish
mark No 1.271.173) and the figurative mark ‘COHIBA’ (Spanish
mark No 2.052.344) in respect of products in Class 34.

Decision of the Opposition Division: Dismissal of the opposition.

Language in which the application was lodged: Spanish

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

Parties

Applicant: Corporación Habanos, SA (Ciudad de la Habana,
Cuba) (represented by: V. Gil Vega and A. Luiz López, lawyers)

Pleas in law: In particular, a high level of similarity between the
opposing marks, resulting in a risk of confusion.