Case T-458/08: Action brought on 9 October 2008 — Wilfer v OHIM
Date: 2008-10-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), equal treatment, musical instrument, trade-mark law

10.1.2009

EN

Official Journal of the European Union

C 6/35

Pleas in law and main arguments

The applicants seek partial annulment of
the Commission's
Decision of 23 July 2008 in Case C 48/06 (ex N 227/06) —
Germany, in so far as it identifies the applicants as beneficiaries
of the State aid that is considered to be incompatible with the
common market and in so far as the decision orders Germany
to recover the alleged State aid.

On 5 April 2006 Germany notified measures undertaken by the
publicly-owned Leipzig Airport and Land Sachsen concerning
the construction and operation of the new southern runway at
Leipzig Airport, relating; in particular, to the establishment of
the European hub of
the DHL group for its express parcel
operations at the said airport. The notified measures were, speci-
fically, the ‘Framework agreement’ (1) concluded between the
airport and DHL Hub Leipzig as well as a ‘Comfort letter’ issued
by Land Sachsen in favour of the Leipzig Airport and DHL Hub
Leipzig to pay a set amount of damages in the event that DHL
Hub Leipzig would no longer operate as foreseen at the airport.
The applicants claim that, as a consequence of the contested
decision, they are deprived of the contractual obligations under-
taken by Leipzig Airport and Mitteldeutsche Flughafen (‘MFAG’)
under the Framework Agreement as well as of the guarantee
provided by the Comfort Letter and also subject to recovery of
the alleged State aid.

The applicants raise the following pleas:

In they first and second pleas, the applicants submit that the
Commission committed manifest errors in the application of
Article 87(1) EC. By characterising the ‘Nightflight clause’ and
the ‘90 % Clause’ as State aid,
the Commission failed to
correctly apply the said provision according to the applicant.
The applicants submit that the Commission manifestly erred in
the application of the private investor test by holding that the
point of reference for it was November 2004 and not the actual
date of the conclusion of the Framework agreement. Further,
the applicants claim that the Commission manifestly erred by
holding that, regardless of the point of reference for the invest-
ment decision, the so-called unlimited guarantees provided in
the Framework agreement constituted State aid in any event,
since risks that DHL assumed under these provisions were
financed by a capital injection which constituted State aid itself.

On the basis of its second plea, the applicants claim that the
Commission failed to correctly apply Article 87(1) EC, by
holding that the Comfort letter constitutes State aid without
considering the usual business practice between holding compa-
nies and subsidiaries.

In its fourth plea, the applicants submit that the Commission
made a manifest error of assessment in ordering the recovery of
the alleged State aid.

In its fifth plea, the applicants submit that the Commission
infringed Article 235 EC by holding that Articles 8 and 9 of the
Framework Agreement contain the alleged State aid and by
these provisions are not compatible with the
deciding that
common market and must therefore be terminated.

this agreement

(1) According to the communication published in the OJ 2007 C 48,
the obligation to
p. 7,
construct the new southern runway and further obligations in terms
of capacity and operation. In case of non-fulfilment (e.g.
if night
flights are banned by the regulatory authorities), DHL can claim
compensation of its losses and damages.

imposes on the airport

Action brought on 9 October 2008 — Wilfer v OHIM

(Case T-458/08)

(2009/C 6/71)

Language in which the application was lodged: German

Parties

Applicant: Hans-Peter Wilfer (Markneukirchen, Germany) (repre-
sented by A. Kockläuner, lawyer)

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

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 25 July
2008 in Case R 78/2007-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing the
head of a guitar using the colours silver, grey and brown, for
goods in Classes 9 and 15 (No 2 639 821)

In its third plea, the applicants submit that the Commission
infringed Article 253 EC by not considering all relevant factors
when characterising the Nightflight Clause, the 90 % Clause and
the Comfort Letter as State aid.

Decision of the Examiner: Rejection of the registration

Decision of the Board of Appeal: Rejection of the appeal

C 6/36

EN

Official Journal of the European Union

10.1.2009

Pleas in law:

— infringement
No 40/94 (1);

of Article 7(1)(b)

of Regulation

(EC)

— infringement of the principle of examination of the facts by
the Office of its own motion,
including disregard for the
rules concerning the burden of proof under Article 74(1) of
Regulation No 40/94;

— infringement of the requirement to state reasons for the
purposes of the first sentence of Article 73 of Regulation
No 40/94;

— infringement of the principle of equal treatment.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 21 October 2008 — Lancôme v OHIM
— Focus Magazin Verlag (ACNO FOCUS)

(Case T-466/08)

(2009/C 6/72)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France)
(represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus
Magazin Verlag GmbH (München, 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 29 July 2008 in case R 1796/2007-1;

— Dismiss the opposition filed by the other party to the
proceedings before the Board of Appeal against the registra-
tion of the community trade mark concerned to the extent
the opposition is based on the trade mark cited in the oppo-
sition proceedings and, further, is based on a likelihood of
confusion within the meaning of Article 8(1)(b) of Council
Regulation 40/94;

— Order OHIM 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 the other party to the proceedings before the Board
of Appeal become an intervener in the present case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ACNO FOCUS’
for goods in class 3 — application No 3 272 705

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: German trade mark registration No 394 07 564
of the word mark ‘FOCUS’ for goods and services in classes 3,
5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33,
34, 36, 38, 39, 41 and 42; Community trade mark application
No 453 720 for, among others, goods in class 3

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 42(3) in conjunction with
Article 43(2) of Council Regulation No 40/94 as the Board of
the other party to the
Appeal erred in its approach that
proceedings before the Board of Appeal can rely on goods in
class 3 to oppose the registration of the Community trade mark
concerned; Infringement of Article 8(1)(b) of Council Regulation
No 40/94 as the Board of Appeal erred in its finding that there
exists a likelihood of confusion between the trade marks
concerned.

Action brought on 17 October 2008 — ISDIN v OHIM —
Pfizer (ISDIN)

(Case T-467/08)

(2009/C 6/73)

Language in which the application was lodged: English

Parties

Applicant: Isdin, SA (Barcelona, Spain) (represented by: M. Esteve
Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pfizer Ltd
(Sandwich, United Kingdom)