Case T-263/08: Action brought on 7 July 2008 — Becker Flugfunkwerk v OHIM — Harman Becker Automotive Systems (BECKER AVIONIC SYSTEMS)
Date: 2008-07-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), air transport, maritime transport, navigation aid, radio equipment, trade-mark law

30.8.2008

EN

Official Journal of the European Union

C 223/55

Mark or sign cited: French trade mark registration No 043 303 854
of the word mark ‘VISUAL’ for services in class 44

Decision of the Opposition Division: Rejection of the Community
trade mark application in its entirety

Mark or sign cited: German trade mark registration No 39 975 563
of the word mark ‘Metec’ for goods and services in classes 16,
35 and 41; international trade mark registration No 752 637 of
the word mark ‘Metec’ for goods and services in classes 16, 35
and 41

Decision of the Board of Appeal: Dismissal of the appeal

Decision of the Opposition Division: Upheld the opposition with
respect to all the contested goods and services

Pleas in law: Infringement of Article 8(1) of Council Regulation
No 40/94 as there is no likelihood of confusion between the
conflicting trade marks.

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The decision of the Board of Appeal should be
annulled on the ground that there is a considerable chance that
the national trade marks cited in the opposition proceedings are
void; alternatively, infringement of Article 8(1) of Council Regu-
lation No 40/94 as there is no similarity between the services
concerned and therefore no likelihood of confusion between the
conflicting trade marks, or, in the alternative, that the services
concerned are not sufficiently similar to conclude that there is a
likelihood of confusion. In the alternative, it should be estab-
lished that the Board of Appeal erred in not considering the fact
that the public concerned is highly specialised and will therefore
not confuse the conflicting trade marks. Finally, as an alternative
plea in law, it should be established that the Board of Appeal
erred in not taking into account the fact that the other party to
the proceedings before the Board of Appeal tolerated the use of
the Community trade mark concerned by the applicant for
more than five years.

Action brought on 7 July 2008 — Becker Flugfunkwerk v
OHIM — Harman Becker Automotive Systems (BECKER
AVIONIC SYSTEMS)

(Case T-263/08)

(2008/C 223/98)

Language in which the application was lodged: English

Action brought on 8 July 2008 — Canon Communications
v OHIM — Messe Düsseldorf (MEDTEC)

(Case T-262/08)

(2008/C 223/97)

Language in which the application was lodged: English

Parties

Applicant: Canon Communications LLC (Los Angles, United
States) (represented by: M. Mak, lawyer)

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

Other party to the proceedings before the Board of Appeal: Messe
Düsseldorf GmbH (Düsseldorf, Germany)

Form of order sought

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 30 April 2008 in case R 817/2005-1;
and

— Order the defendant/the other party to the proceedings

before the Board of Appeal to pay the costs.

Parties

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Applicant:
Germany) (represented by: O. Griebenow, lawyer)

Flugfunkwerk

Becker

GmbH (Rheinmünster,

Community trade mark concerned: The word mark ‘MEDTEC’ for
goods and services in classes 16, 35 and 41

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

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Other party to the proceedings before the Board of Appeal: Harman
Becker Automotive Systems GmbH (Karlsbad, Germany)

C 223/56

EN

Official Journal of the European Union

30.8.2008

Form of order sought

Form of order sought

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 10 April 2008 in case R 398/2007-1;
and

— Refuse opposition No B 484 503 relating to Community

trade mark application No 1 829 563.

— Annul Commission Decision C(2008) 1690 final of 30 April
2008 reducing the assistance from the European Regional
Development Fund (ERDF) for an operational programme in
the Objective 1 region Thuringia in the Federal Republic of
Germany (1994-1999);

— Order the Commission to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘BECKER
AVIONIC SYSTEMS’
application
goods
No 1 829 563

in class 9,

for

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Mark or sign cited: United Kingdom trade mark registration
No 1 258 929 of the word mark ‘BECKER’ for goods in class 9;
German trade mark registration No 1 039 843 of the figurative
mark ‘BECKER’ for goods in class 9; German trade mark regis-
tration No 1 016 927 of the figurative mark ‘BECKER’ for
goods in class 37; Finnish trade mark registration No 116 880
of the word mark ‘BECKER’ for goods in class 9; Greek trade
mark registration No 82339 of the word mark ‘BECKER’ for
trade mark registration
International
goods
No 473 178 of the word mark ‘BECKER’ for goods in class 9

in class 9;

Decision of the Opposition Division: Uphold the opposition with
respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) of Council Regulation
No 40/94 as there is no likelihood of confusion between the
conflicting trade marks.

Action brought on 4 July 2008 — Germany v Commission

(Case T-265/08)

(2008/C 223/99)

Language of the case: German

Parties

Applicant:
M. Lumma and U. Karpenstein, lawyer)

Federal Republic of Germany (represented by:

Defendant: Commission of the European Communities

In the contested decision, the Commission, reduced the financial
assistance from the ERDF for the operational programme in the
Objective 1 region Thuringia in the Federal Republic of
Germany (1994-1999).

The applicant relies on four grounds in support of its action.

it complains that

Firstly,
the Commission did not correctly
assess important elements of fact in connection with priority
axis 2.1 of
issue (support
the operational programme at
measures for small and medium-sized enterprises: support for
productive investment).

Second, the applicant alleges an infringement of Article 24(2) of
Regulation (EEC) No 4253/88 (1) since no irregularities within
the meaning of that provision have occurred. In that connec-
tion, it argues, in particular, that that provision does not permit
the Commission to make financial corrections for administrative
errors or allegedly inadequate systems of administration or
supervision.

In addition, the applicant, argues that the Commission is not
permitted to carry out extrapolated financial corrections under
that provision
Regulation No 4253/88, since Article 24 of
refers to concrete cases and assistance which may be expressed
in figures and not to hypothetical conclusions of systematic
misadministration drawn on the basis of an administrative error
which has been discovered.

Finally, the applicant complains that there is an infringement of
Articles 23 and 24 of Regulation No 4253/88 even if it is
accepted that extrapolated financial corrections are permitted
inasmuch as the extrapolations are erroneous. It argues in that
connection that the Commission should not have emphasised
extrapolations based on the analysis of weak points by the
Court of Auditors of
the
Commission is partly to blame for the matters of which it
complains and that the extrapolations at issue infringe the prin-
ciple of proportionality.

the European Communities,

that

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988 laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
the European
between themselves and with the operations of
Investment Bank and the other existing financial
instruments
(OJ 1988 L 374, p. 1).