Case T-467/08: Action brought on 17 October 2008 — ISDIN v OHIM — Pfizer (ISDIN)
Date: 2008-10-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, pharmaceutical product, trade-mark law

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)

10.1.2009

EN

Official Journal of the European Union

C 6/37

Form of order sought

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 4 July 2008 in case R 1031/2007-1;
and

— Order the defendant and, as the case may be, the other
party to the proceedings before the Board of Appeal, to pay
the costs of the proceedings, including those incurred before
the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ISDIN’ for
goods in classes 3 and 5 — application No 3 288 339

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: Irish trade mark registration No 64 939 of
the word mark ‘ISTIN’ for goods in class 5; United Kingdom
trade mark registration No 824978 of the word mark ‘ISTIN’
for goods in class 5

Decision of the Opposition Division: Partially upheld the opposi-
tion

Decision of the Board of Appeal: Dismissal of the appeal

— Annul the decision of the Commission of 4 June 2008,

C 41/2005;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2008) 2223 final, of 4 June 2008, declaring incompatible
with the common market the aid granted by the Hungarian
authorities to certain electricity generating producers in the
form of long-term power purchase agreements (‘PPA’) of electri-
city concluded between the transmission operator Magyar
Villamos Müvek Rt. (‘MVM’), owned by the Hungarian State, and
these producers at a date prior to the accession of the Republic
of Hungary to the European Union [State aid C 41/05 (ex
NN 49/05) — Hungarian ‘Stranded Costs’]. The applicant is
identified in the contested decision as a beneficiary of
the
alleged State aid and the decision orders Hungary to recover the
aid, including interest, from the applicant.

The applicant claims that the Commission erred in law and
committed manifest errors of assessment, and has further
infringed fundamental principles of European law, by finding
that the purchase obligations contained in the PPA between
MVM and the applicant constitute illegal State aid. In support of
its claims, the applicant raises seven pleas in law.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its findings
that the trade marks concerned are similar, that the goods in
question were hardly similar and that there is a likelihood of
confusion between the trade marks concerned.

In its first plea, the applicant submits that the Commission
infringed Article 87(1) EC in as much as it committed errors of
law and manifest errors of assessment by failing to establish to
the requisite standard that the alleged aid measure conferred a
selective advantage to the applicant through State resources.

Action brought on 21 October 2008 — AES-Tisza v
Commission

(Case T-468/08)

(2009/C 6/74)

Language of the case: English

Second, the applicant claims that, by qualifying the applicant's
PPA as aid and requiring its recovery, the decision violates the
fundamental principles of Community law. The applicant argues
that the Commission infringed its procedural rights by failing to
respect the right to a fair hearing. In the applicant's view, the
Commission infringed as well the fundamental principles of
legal certainty and of legitimate expectations in as much as it
to the alleged aid measures,
applied an ex post assessment
departing from the established rule of
ex ante assessment,
without any valid justification. The applicant further submits
that the Commission infringed the principles of neutrality and
equal treatment.

Third, the applicant contends that the Commission committed
manifest errors of assessment in relation to the application of
the cumulative criteria of Article 87(1) EC to the applicant's PPA
in the period after the accession.

Parties

(Tiszaújváros,
Applicant: AES-Tisza Erőmű kft (AES-Tisza kft)
Hungary) (represented by: T. Ottervanger and E. Henny, lawyers)

Defendant: Commission of the European communities

Fourth, the applicant states that the Commission infringed its
obligation to state reasons, as required by Article 253 EC, in
particular in relation to the conclusions regarding the classifica-
tion of the PPAs as aid as of 1 May 2004 and in the application
of the ‘counterfactual’ market.