Case T-345/08: Action brought on 22 August 2008 — Helena Rubinstein v OHIM — Allergan (BOTOLIST)
Date: 2008-08-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, cosmetics industry, product designation

C 272/42

EN

Official Journal of the European Union

25.10.2008

The applicant further submits that, in wrongly relying on the
permissible exceptions for denying access to the documents
requested, the Commission has violated Article 255 EC and
Articles 1(a), 2(1) and (3), 4(1) to (6) of the Access Regulation
and that, consequently, the contested decision is vitiated by an
infringement of the Treaty and of any rule of law relating to its
application, as envisaged in Article 230(2) EC.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

(2) OJ 1989 L 298, p. 23.
(3) OJ 1997 L 202, p. 60.

No 1049/2001 (1), since the exceptions laid down in those
provisions were misinterpreted or misapplied. Further, the appli-
cant claims that the Commission infringed the last clause of
Article 4(2) of Regulation No 1049/2001, since it wrongly
denied that the applicant has an overriding public interest in
access to the file in Case COMP/F/38.899. Finally, the applicant
submits that there was an infringement of Article 4(6) of Regu-
lation No 1049/2001, since the applicant ought to have been
allowed to consult at least part of the documentation included
in the file in Case COMP/F/38.899.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

Action brought on 25 August 2008 — EnBW Energie
Baden-Württemberg v Commission

(Case T-344/08)

(2008/C 272/83)

Language of the case: German

Action brought on 22 August 2008 — Helena Rubinstein v
OHIM — Allergan (BOTOLIST)

(Case T-345/08)

(2008/C 272/84)

Language in which the application was lodged: English

Parties

Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe,
Germany) (represented by: A. Bach and A. Hahn, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant: Helena Rubinstein, SNC (Paris, France)
by: A. von Mühlendahl and J. Pagenberg, lawyers)

(represented

Form of order sought

— Annul Commission Decision D(2008) 4931 of 16 June
2008 concerning a request for access to the administrative
files in Case COMP/F/38.899 (Gas insulated switchgear);

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

Other party to the proceedings before the Board of Appeal: Allergan,
Inc. (Irvine, United States)

— in

the

alternative,

Commission

Decision
annul
D(2008) 4931 of 16 June 2008 concerning a request for
access to the administrative files in Case COMP/F/38.899
(Gas insulated switchgear) in so far as the Commission also
refused the applicant partial access to the documents on the
file;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant objects to the Commission's decision of 16 June
2008 rejecting the applicant's second request for access to docu-
ments on the Commission's file in Case COMP/F/38.899 — Gas
insulated switchgear.

The applicant advances three pleas in support of its application.

First of all, the applicant alleges an infringement of the first
and third indents of Article 4(2) of Regulation (EC)

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) of 28 May 2008 in case R 863/2007-1;

— Dismiss the appeal filed by the other party to the proceed-
ings before the Board of Appeal against the decision of the
Cancellation Division of the defendant taken on 28 March
2007 in case 1118 C;

— Order the defendant to pay the costs of the proceedings,
including those incurred by the applicant before the Board
of Appeal; and

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings,
including
those incurred by the applicant before the Board of Appeal,
should it become an intervening party in this case.

25.10.2008

EN

Official Journal of the European Union

C 272/43

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of invalidity: The word mark ‘BOTOLIST’ for goods in
class 3 — Community trade mark registration No 2 686 392

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

Other party to the proceedings before the Board of Appeal: Touchnet
Information Systems, Inc. (Lenexa, United States)

Proprietor of the Community trade mark: The applicant

Form of order sought

Party requesting the declaration of invalidity of the Community trade
mark: The other party to the proceedings before the Board of
Appeal

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 28 May 2008 in case R 493/2007-2;

Trade mark right of the party requesting the declaration of invalidity:
Community trade mark registration No 2 015 832 of
the
figurative mark ‘BOTOX’ for goods in class 5; Community trade
mark registration No 2 575 371 of
the figurative mark
‘BOTOX’ for goods in class 5; Community trade mark registra-
tion No 1 923 986 of the figurative mark ‘BOTOX’ for goods in
class 5 and 16; Community trade mark registration No 1 999 481
of the word mark ‘BOTOX’ for goods in class 5; various registra-
tions of the trade mark ‘BOTOX’ in the Member States of the
European Communities.

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

— In the alternative, annul the decision of the Second Board of
Appeal of
the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 28 May 2008 in case
R 493/2007-2 to such extent as the court may deem fit;
and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘iTouch’
services in classes 38 and 42

for

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

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

Pleas in law: Infringement of Article 8(5) of Council Regulation
No 40/94 as there is no proof that the earlier trade marks had
reputation in the relevant point in time, as the conflicting trade
marks are not sufficiently similar, as there is further no proof
that the use of the registered Community trade mark subject of
the application for a declaration of invalidity would be detri-
mental to the distinctiveness and reputation of the earlier trade
marks and that
the applicant acted
without due cause when adopting the registered Community
trade mark subject of the application for a declaration of inva-
lidity;
infringement of Article 73 of Council Regulation
No 40/94 as the contested decision does not state the reasons
on which it is based.

there is no proof

that

or

sign cited: Community

trade mark registration
Mark
No 1 449 503 of the word mark ‘TOUCHNET’ for goods and
services in classes 9, 37 and 42

Decision of the Opposition Division: Upheld the opposition in its
entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
there exists a likelihood of confusion between the conflicting
trade marks.

Action brought on 20 August 2008 — iTouch International
v OHIM — Touchnet Information Systems (iTouch)

Action brought on 22 August 2008 — Papierfabrik
Hamburger-Spremberg v Commission

(Case T-347/08)

(2008/C 272/85)

Language in which the application was lodged: English

(Case T-350/08)

(2008/C 272/86)

Language of the case: German

Parties

Parties

Applicant: Papierfabrik Hamburger-Spremberg GmbH & Co. KG
(Spremberg, Germany) (represented by: S. Polster, lawyer)

Applicant:
(represented by: T. Alkin, Barrister)

iTouch International plc (London, United Kingdom)

Defendant: Commission of the European Communities