Case T-277/08: Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)
Date: 2008-07-15
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), dietary product, food supplement, trade-mark law

13.9.2008

EN

Official Journal of the European Union

C 236/15

Action brought on 15 July 2008 — Al-Aqsa v Council

non-material damage, in respect of which the Council has been
liable since 28 June 2003, that being the date on which the
European measures entered into force.

(Case T-276/08)

(2008/C 236/25)

Language of the case: Dutch

Parties

Applicant: Al-Aqsa (Heerlen, Netherlands)
Pauw and M. Uiterwaal, lawyers)

(represented by:

J.

Defendant: Council of the European Union

Form of order sought

— declare that the Council is under an obligation to compen-
sate the applicant for the damage which it has suffered, in
the amount of EUR 10 600 000, plus interest to be calcu-
lated up to the date of judgment in the present case, or at
least such compensation as the Court may determine;

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

Pleas in law and main arguments

The applicant is seeking compensation in respect of the damage
which it claims to have suffered by reason of the fact that
Council Decision 2003/480/EC of 27 June 2003 (1) placed it on
the list of persons to whom Regulation (EC) No 2580/2001 (2)
is to apply. The applicant's inclusion on the list has subsequently
been confirmed on the occasion of each update.

The applicant contends that these decisions are unlawful for a
variety of reasons. The applicant first points out that Decision
2006/379/EC of 29 May 2006 (3) was annulled by the Court on
the ground that it failed to meet the requirement of an adequate
statement of reasons (4). The applicant contends further that the
decisions are vitiated by a number of substantive defects, and
refers in this connection to its pleas in law in Cases T-327/03
and T-348/07 Al-Aqsa v Council (5).

In issue here, according to the applicant, are sufficiently serious
breaches of rights conferred on individuals as accordingly to
justify the award of compensation. The damage suffered by
involves both damage to its reputation and
the applicant

(1) Council Decision 2003/480/EC of 27 June 2003 implementing
Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive
measures directed against certain persons and entities with a view to
combating terrorism and repealing Decision 2002/974/EC (OJ 2003
L 160, p. 81).

(2) Council Regulation (EC) No 2580/2001 of 27 December 2001 on
specific restrictive measures directed against certain persons and enti-
ties with a view to combating terrorism (OJ 2001 L 344, p. 70).
(3) Council Decision 2006/379/EC of 29 May 2006 implementing
Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive
measures directed against certain persons and entities with a view to
combating terrorism and repealing Decision 2005/930/EC (OJ 2006
L 144, p. 21).

(4) Judgment of the Court of First Instance of 11 July 2007 in Case

T-327/03 Al-Aqsa v Council.

(5) OJ 2003 C 289, p. 30, and OJ 2007 C 269, p. 61, respectively.

Action brought on 15 July 2008 — Bayer Healthcare v
OHIM — Laboratorios ERN (CITRACAL)

(Case T-277/08)

(2008/C 236/26)

Language in which the application was lodged: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, United States)
(represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal: Labora-
torios ERN, SA (Sant Just Desvern, Spain)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 5 May 2008 in case R 459/2007-4; and

— Order the defendant or alternatively the other party to the
proceedings before the Board of Appeal to pay the costs. As
a further alternative, to order the defendant and the other
party to the proceedings before the Board of Appeal to be
liable jointly and severally for the costs.

C 236/16

EN

Official Journal of the European Union

13.9.2008

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly
Mission Pharmacal Company)

Community trade mark concerned: The word mark ‘CITRACAL’ for
goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal
(formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532
of the mark ‘CICATRAL’ for goods in classes 1 and 5

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: The Board of Appeal erred in its assessment of the
evidence of proof-of-use, and in particular on the issue of the
provision of a suitable translation of the goods in relation to
which the mark cited in the opposition proceedings was used.
Further, the Board of Appeal erred in its assessment of the exis-
tence of a likelihood of confusion between the conflicting trade
marks.

implementing Article 2(3) of Regulation (EC) No 2580/2001 on
specific restrictive measures directed against certain persons and
entities with a view to combating terrorism and repealing Deci-
sion 2007/868/EC.

In support of its application, the applicant submits that the
contested decision should be annulled because, in so far as it
relates to the inclusion of the applicant on the list of terrorist
organisations, there was no relevant decision at the time from a
competent national authority sufficient to form any justification
for the decision. In addition, the applicant claims that the deci-
sion should be annulled because while it was said to be based
on ‘new information’ and on a decision from a competent
authority other than that of the United Kingdom, the evidence
on which the Council relied was not disclosed to the applicant
before adopting the decision. Further, the applicant claims that
no justification was given as to why such information was to be
treated as new, or relevant.

The applicant puts forward that the contested decision was
taken without any proper evaluation of the new information
and on whether that constituted concrete and reliable evidence
upon which the Council was entitled to act, in order to prove
that the applicant was engaged in terrorism.

Furthermore, the applicant contends that the contested decision
was adopted in violation of the applicant's right to be heard and
its fundamental rights. The applicant submits, finally, that the
contested decision was
adopted in circumstances which
amounted to an abuse or misuse of procedures and/or powers.

Action brought on 21 July 2008 — People's Mojahedin of
Iran v Council

(1) OJ 2008 L 188, p. 21.

(Case T-284/08)

(2008/C 236/27)

Language of the case: English

Parties

Applicant: People's Mojahedin Organization of Iran (Auvers sur
Oise, France)
lawyer and D.
Vaughan, QC)

(represented by:

J.-P. Spitzer,

Action brought on 23 July 2008 — Inditex v OHIM

(Case T-292/08)

(2008/C 236/28)

Language in which the application was lodged: Spanish

Defendant: Council of the European Union

Form of order sought

Parties

— To annul Decision 2008/583/EC of the Council insofar as it

applies to the applicant;

— To order the defendant to pay the applicant's costs.

Applicant:
(Arteixo,
Industria de Diseño Textil, SA (Inditex)
Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-
Gómez, lawyers)

Pleas in law and main arguments

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

The applicant seeks, pursuant to Article 230 EC, partial annul-
ment and in so far as it concerns the applicant, of Council Deci-
sion 2008/583/EC of 15 July 2008 (1) (‘the contested decision’)

Other party to the proceedings before the Board of Appeal of OHIM:
Roberto Fernando Marín Díaz de Cerio (Logroño, Spain)