Case T-463/08: Action brought on 19 October 2008 — Imagion v OHIM (DYNAMIC HD)
Date: 2008-10-19
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Germany, action for annulment (EU), audiovisual industry, fine, infringement of EU law

20.12.2008

EN

Official Journal of the European Union

C 327/39

Action brought on 19 October 2008 — Imagion v OHIM
(DYNAMIC HD)

Action brought on 15 October 2008 — Czech Republic v
Commission

(Case T-463/08)

(2008/C 327/68)

Language of the case: German

(Case T-465/08)

(2008/C 327/69)

Language of the case: Czech

Parties

Parties

Applicant: Imagion AG (Trierweiler, Germany) (represented by:
H. Blatzheim, lawyer)

Applicant: Czech Republic (represented by: M. Smolek, Agent)

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

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 13 August 2008 (Case R 488/2008-4); and

— Annul the decision of the Commission of the European
Communities of 7 August 2008 on offsetting the Commis-
sion's claims against its debts, BUG/C3 D(2008) 10.5-3956;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘DYNAMIC HD’ for
services in Classes 35, 38, 41, 42 and 45 (No 6 092 241)

Decision of the Examiner: Refusal, in part, of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 7(1)(b) and (c) of Regulation (EC)
No 40/94 (1)
is
neither descriptive, nor does it lack the necessary distinctive
character;

in that the word mark ‘DYNAMIC HD’

— Infringement of Article 7(3) of Regulation No 40/94 in that
the trade mark applied for has acquired distinctive character
through use;

— Breach of the duty to state reasons;

— Breach 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).

— Order

the Commission to pay the Czech Republic the
amount offset of EUR 9 354 130,93 and the corresponding
interest for late payment;

— Order the Commission to pay the costs.

Pleas in law and main arguments

1. The Czech Republic, by this action brought pursuant to
Article 230 of the Treaty establishing the European Com-
munity, seeks annulment of the decision of the Commission
of the European Communities of 7 August 2008 on offset-
ting the Commission's claims against
its debts, BUG/C3
D(2008) 10.5-3956. The Commission on issuing the
contested decision acted pursuant to Article 73(1) of Council
Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget
the European Communities (1), as amended. By the
of
contested decision, the Commission offset its claim against
the Czech Republic, for repayment of funds from the PHARE
T9106, CS9203 and CZ9302 revolving funds, amounting to
EUR 9 354 130,93. The Commission's claim was offset
against the Czech Republic's claim to two interim payments
on two operational programmes financed from the structural
fund amounting to EUR 10 814 475,41. The Czech
Republic thus requests that the offset payments be made
good.

2. The contested decision is invalid, since the Commission
in that the decision in

exceeded its powers by issuing it,
question was adopted on an incorrect legal basis.