Case T-247/08: Action brought on 20 June 2008 — C-Content v Office for Official Publications of the European Communities
Date: 2008-06-20
Institutions: Court of First Instance
Subjects: EU publication, Publications Office of the European Union, action for annulment (EU), award of contract, electronic document, invitation to tender, provision of services

C 209/62

EN

Official Journal of the European Union

15.8.2008

Other party to the proceedings before the Board of Appeal: Educa
Borras SA (Sant Quirze del Valles, Barcelona, Spain)

Action brought on 20 June 2008 — C-Content v Office for
Official Publications of the European Communities

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 8 April 2008 in case R 597/2007-2;
and

— Order OHIM to pay the costs.

(Case T-247/08)

(2008/C 209/111)

Language of the case: English

Pleas in law and main arguments

Parties

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘EDUCA Memory
game’ for goods in class 28 — Community trade mark registra-
tion No 495 036

Proprietor of the Community trade mark: The other party to the
proceedings before the Board of Appeal

Applicant: C-Content BV ('s Hertogenbosch,
(represented by: M. Meulenbelt, advocaat)

the Netherlands)

Defendant: Office for Official Publications of
Communities

the European

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

Form of order sought

Trade mark right of the party requesting the declaration of invalidity:
The international word trade mark ‘MEMORY’
registration
No R 393 512; the Benelux word trade mark ‘MEMORY’ regis-
tration No 38 328; the German word trade mark ‘MEMORY’
registration No 964 625

Decision of the Cancellation Division: Invalidity of the Community
trade mark concerned

Decision of the Board of Appeal: Annulment of the decision of the
Cancellation Division

Pleas in law: (i) infringement of Article 8(1) of Council Regu-
lation No 40/94 as the Board of Appeal erred in concluding
that the potentially colliding element in the Community trade
mark concerned is of purely descriptive nature and thus cannot
cause a risk of confusion with the applicant's earlier trade
marks; (ii) infringement of Article 8(5) of Council Regulation
No 40/94 as the Board of Appeal erred in requiring that appli-
cant prove a risk of confusion; (iii) infringement of Article 74 of
Council Regulation No 40/94 as the Board of Appeal did not
properly take into account the labelling practice of the relevant
market; (iv) infringement of Article 75 of Council Regulation
No 40/94 as the Board of Appeal failed to convene a hearing,
as requested by the applicant.

— Declare that

the Office for Official Publications of

the
European Communities (Publications Office) infringed Com-
munity law in relation to tenders and contracts set out in
the present application;

— Order the Publications Office to compensate the costs and
damages incurred by the applicant, as set out in the present
application;

— Order the Publications Office 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 damages it claims to have
incurred as a result of the alleged irregularities committed by
the Office for Official Publications of the European Commu-
nities (Publications Office) within certain tender procedures
related to electronic publication services.

The applicant puts forward a number of grounds for liability for
every contested tender procedure.

The applicant claims the Publications Office infringed the prin-
ciple of good administration and duty diligence as well as the
principles of equal treatment, transparency and legitimate expec-
tations:

15.8.2008

EN

Official Journal of the European Union

C 209/63

1. In tender No 2034 for the production and duplication of
CD-ROMs containing the L and C series of
the Official
journal: by awarding the tender to a competitor of the appli-
cant, in spite of the applicant having submitted the econom-
ically most advantageous bid; by amending the key specifica-
tions and lowering tender requirements during the tender
procedure or after the successful tenderer had been selected
without informing other competitors; by refusing to carry
out a proper review of the tender results when objections
concerning the outcome of the tender were brought to the
Publications Office's attention; by failing to organise a new
tender instead of continuing contract No 2034 on the basis
of significantly lowered standards.

information;

2. In tender No 6019 for the provision of services in relation
to electronic publications, in particular the Supplement (S) of
the Official Journal, after the accession of 10 new member
States: by cancelling the tender on the basis of Article 101 of
Regulation 1605/2002 (1) for reason of disclosure of confi-
the said
dential
disclosure could not have influenced the tender results as the
information was already in the public knowledge and the
bids had already been submitted by then. Moreover,
the
applicant claims that there was no proper motivation given
by the Publications Office. It finally submits that the cancella-
tion caused significant damage to the applicant which had
submitted the most advantageous of the two remaining bids
within the cancelled tender.

the applicant submits that

3. In tender No 1695 for the provision of services in relation
to electronic publications, in particular the Supplement (S) of
the Official
Journal: by using the extension of Contract
No 1695 to amend it. The applicant claims that there was
no legal basis for the Publications Office to proceed or to
authorise the extension of the Contract and, in consequence,
to amend it by changing the subcontractor. The applicant
submits
the Publications Office failed to seriously
negotiate or investigate the possibility of maintaining the
applicant as the existing main subcontractor during the
remaining period.

that

The applicant claims that as a direct result of the abovemen-
tioned infringements, it lost its position as the Publications Offi-
ce's software provider and incurred significant costs, damages
and loss of profits and it considers the Publications Office to be
liable to compensate them.

(1) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248 p. 1).

Action brought on 24 June 2008 — Coin v OHIM —
Dynamiki Zoi (FITCOIN)

(Case T-249/08)

(2008/C 209/112)

Language in which the application was lodged: English

Parties

Applicant: Coin SpA (Mestre, Venezia,
P. Perani and P. Pozzi, lawyers)

Italy)

(represented by:

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

Other party to the proceedings before the Board of Appeal: Dynamiki
Zoi Anonymi Etairia (Peristeri, Greece)

Form of order sought

— Alter the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 15 April 2008 in case R 1429/2007-1;

— Reject Community trade mark No 3 725 298 ‘FITCOIN’;

and

— Order the other parties to pay the costs, including those of

the OHIM opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘FITCOIN’ for
goods and services in classes 16, 25, 28, 35, 36 and 41 —
application No 3 725 298

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

Mark or sign cited: The Italian trade mark ‘coin’ registration
No 160 126 for goods in class 25; the Italian trade mark ‘coin’
registration No 253 233 for goods and services in classes 16,
25, 28, 35, 36 and 41; the Italian trade mark ‘coin’ registration
No 240 305 for goods and services in classes 16, 25, 28, 35,
36 and 41; the Italian trade mark ‘coin’ registration No 169 548
for goods and services in classes 16, 25, 28, 35, 36 and 41,
extended to Benelux, France, Hungary, Austria and Portugal; the
Italian trade mark ‘coin’ registration No 240 286 for goods and
services in class 25, extended to Benelux, France, Hungary and
Austria; Community trade mark ‘coin’ registration No 109 827
for goods and services in classes 16, 25, 28, 35; international
trade mark ‘coin’ registration No R 381 015 for goods and
services in classes 16, 25, 28, 35, 36 and 41, extended to
Benelux, Germany, Spain, France, Hungary, Austria, Portugal
and Slovenia.