Case T-357/08: Action brought on 1 September 2008 — L'Oréal v OHIM — Allergan (BOTOCYL)
Date: 2008-09-01
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 272/44

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

25.10.2008

EN

Official Journal of the European Union

C 272/45

that

there is no proof

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-
infringement of Article 73 of Council Regulation
lidity;
No 40/94 as the contested decision does not state the reasons
on which it is based.

Action brought on 3 September 2008 — Spain v
Commission

(Case T-358/08)

(2008/C 272/88)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríquez

Defendant: Commission of the European Communities

Form of order sought

— annul Decision C(2008) 3249 of 25 June 2008 relating to
the reduction of assistance granted the Cohesion Fund to
Project No 96/11/61/018 — ‘Saneamiento de Zaragoza’.

— order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the decision to reduce the finan-
cial assistance initially granted by the Commission to various
projects in the three phases of the ‘Proyecto de saneamiento de
Zaragoza’. That decision results in a financial correction of
25 % of the co-financed expenditure with respect to the second
and third phases of the project, which gives rise to an obligation
to repay EUR 3 106 966. The Commission take the view that
the Municipality of Zaragoza failed to comply with Community
rules on public contracts by artificially splitting the works and
failing to publish the contracts in the O.J.E.C,
in accordance
with the provisions of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities oper-
ating in the water, energy, transport and telecommunications
sectors, publishing it only in the Boletín Oficial de Aragón.

to the basic definition of ‘works’ by denying the existence of
technical or economic differences between the various
projects since, it argues, the description of the works to be
undertaken was similar and pursued the same economic
function: the overall improvement of the network for the
benefit of its users. To the contrary, the contracts concerned
are technically distinct works, with clearly distinct functions
and which require the performance of a variety of tasks.

— infringement of the principle of the protection of legitimate
expectations and the principle patere quam ipse legem fecisti, in
so far as the Commission approved the projects as they were
submitted and that, both the original application in 1996
and the
application in 1997 contain a
description of each and every one of the projects included in
each phase, together with the express mention of the fact
that it was no necessary to publish the tender notices in the
O.J.E.C.

subsequent

— inadequacy of the reasons set out in the contested decision.

— expiry of the limitation period for the Commission to bring
proceedings in accordance with the provisions of Article 3
of Council Regulation (EC, Euratom) No 2988/95 of
18 December 1995 on the protection of
the European
Communities financial interests

— expiry of

of

18

the period prescribed,

in accordance with the
provisions in Article H.2 of Annex II to Regulation 1164/94
and Article
(EC)
No 1386/2002 of 29 July 2002 laying down detailed rules
implementation of Council Regulation (EC)
for
No 1164/94 as
the management and control
systems for assistance granted from the Cohesion Fund and
the procedure for making financial corrections.

Commission

Regulation

regards

the

In the alternative, the applicant alleges infringement of the prin-
ciple of proportionality.

Action brought on 3 September 2008 — Spain v
Commission

(Case T-359/08)

(2008/C 272/89)

Language of the case: Spanish

In support of its form of order the applicant claims:

Parties

— infringement of Article H of Annex II to Council Regulation
(EC) No 1164/94 of 16 May 1994 establishing a Cohesion
Fund and Article 14(13) of Directive 93/38/EEC. In that
connection, the applicant takes the view that the defendant
has committed a manifest error of assessment with respect

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríguez

Defendant: Commission of the European Communities