Case T-468/08: Action brought on 21 October 2008 — AES-Tisza v Commission
Date: 2008-10-21
Institutions: Court of First Instance
Subjects: EU law, European Commission, Hungary, State aid, action for annulment (EU), electricity supply, energy grid, energy production

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.

C 6/38

EN

Official Journal of the European Union

10.1.2009

the applicant submits that

Fifth,
the Commission infringed
Article 87(3)(a) and (c) EC by failing to recognize any role for
the applicant's PPA in securing the necessary investment in a
modern, upgraded plant.

Sixth, in the applicant's opinion, the Commission infringed its
duty to ensure legal specificity in respect of recovery, failed to
qualify the scope and value of the ‘purchase obligations’ and
based its recovery order on hypothetical elements.

Finally, the applicant claims that the Commission infringed the
fundamental principles of Community law in ordering recovery
of the alleged aid.

Action brought on 22 October 2008 — Companhia Muller
de Bebidas v OHIM — Missiato Industria e Comercio (61 A
NOSSA ALEGRIA)

(Case T-472/08)

(2009/C 6/75)

Community trade mark concerned: The figurative mark ‘61 A
NOSSA ALEGRIA’ for goods in class 33

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: Portuguese trade mark registration No 273 105
of the figurative mark ‘CACHAÇA 51’ for goods in class 33;
Portuguese trade mark registration No 331 952 of the figurative
mark ‘CACHAÇA 51’ for goods in class 33; Benelux trade mark
registration No 576 901 of the figurative mark ‘CACHAÇA 51’
for goods in classes 32 and 33; Danish trade mark registration
No VR 1998 03649 of the figurative mark ‘CACHAÇA 51’ for
goods in class 33; United Kingdom trade mark registration
No 2 248 316 of the series of figurative marks ‘CACHAÇA 51’
for goods
in class 33; Spanish trade mark registration
No 2 354 943 of the figurative mark ‘CACHAÇA 51’ for goods
in class 33; German trade mark registration No 30 071 545 of
the figurative mark ‘CACHAÇA 51’; Austrian trade mark regis-
tration No 161 564 of the figurative mark ‘CACHAÇA 51’ for
goods in class 33; Portuguese well-known figurative trade mark
‘CACHAÇA 51’ for goods in class 33; Portuguese well-known
word trade mark ‘CACHAÇA 51’ for goods in class 33.

Decision of the Opposition Division: Rejected the opposition in its
entirety

Language in which the application was lodged: English

Decision of the Board of Appeal: Dismissed the appeal

Parties

Applicant: Companhia Muller de Bebidas (Pirassununga, Brazil)
(represented by: G. Da Cunha Ferreira and I. Bairrão, lawyers)

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

Other party to the proceedings before the Board of Appeal: Missiato
Industria e Comercio Lda (Santa Rita do Passa Quatro, Brazil)

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 is no likelihood of confusion between the conflicting trade
marks; Infringement of Article 52(1)(a) of Council Regulation
No 40/94 as the Board of Appeal erred in its finding that the
evidence submitted by the applicant was not sufficient to prove
the well known character of the earlier trade marks in Portugal,
or, at least its enhanced distinctiveness as a whole.

Form of order sought

Action brought on 28 October 2008 — Apollo Group v
OHIM (THINKING AHEAD)

— Annul the decision of the First Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 4 July 2008 in case R 1687/2007-1,
inasmuch as it upheld the decision allowing the registration
of the Community trade mark concerned;

— Declare the registration of

the Community trade mark
concerned invalid for all goods protected, on the basis that
there is a likelihood of confusion with the trade marks cited
in the opposition proceedings; and

— Order the defendant and the other party to the proceeding

before the Board of Appeal to pay the costs.

Parties

(Case T-473/08)

(2009/C 6/76)

Language of the case: English

Pleas in law and main arguments

Applicant(s): Apollo Group, Inc. (Phoenix, United States) (repre-
sented by A. Jaeger-Lenz and A. Link, lawyers)

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

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