Case T-350/08: Action brought on 22 August 2008 — Papierfabrik Hamburger-Spremberg v Commission
Date: 2008-08-22
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), control of State aid, infringement of EU law, pulp and paper industry, regional aid

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

C 272/44

EN

Official Journal of the European Union

25.10.2008

Form of order sought

— Annul the contested Commission Decision C(2008) 1107
final of 2 April 2008 in State aid case N 582/2007 —
Germany, according to which the regional aid in favour of
Propapier PM 2 GmbH & Co. KG is compatible with the
EC Treaty;

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)

— Order the Commission to pay the applicant's costs.

Form of order sought

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1107
final of 2 April 2008, by which the Commission declared that
the regional aid which the Federal Republic of Germany
approved for Propapier PM 2 is compatible with the EC Treaty.

The applicant relies on the following three pleas in law in
support of its action.

First, the applicant alleges that, by not opening the formal inves-
tigation procedure, the Commission infringed Article 88(2) EC,
Article
and
paragraph 68 et seq. of the Guidelines on national regional aid
for 2007-2013 (2).

of Regulation

659/1999 (1)

(EC) No

4

By its second plea in law the applicant complains that the obli-
gation to provide reasons was infringed in relation to the nature
of the regional aid Guidelines as the exclusive basis for the deci-
sion; it also complains of infringements in relation to the need
recycled fibre as the
to take into account
upstream market for corrugated case material and regarding the
assessment of the competitive position on those markets and on
the downstream corrugated board market of the recipient of
State aid Propapier PM 2.

the market

for

Finally the applicant claims with reference to the distortion of
competition associated with the investment project affecting a
total of three product markets that the regional aid approved for
Propapier PM 2 is incompatible with the common market.

(1) 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).
(2) OJ 2006 C 54, p. 13.

Action brought on 1 September 2008 — L'Oréal v OHIM
— Allergan (BOTOCYL)

(Case T-357/08)

(2008/C 272/87)

Language in which the application was lodged: English

Parties

Applicant:
A. von Mühlendahl and J. Pagenberg, lawyers)

SA (Clichy,

France)

L'Oréal

(represented

by:

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 5 June 2008 in case R 865/2007-1;

— 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 4 April
2007 in case 1120 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.

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The word mark ‘BOTOCYL’ for goods in
class 3 — Community trade mark registration No 2 782 282

Proprietor of the Community trade mark: The applicant

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

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

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

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