Case T-481/08: Action brought on 5 November 2008 — Alisei v Commission
Date: 2008-11-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Commission, action for annulment (EU), fine, humanitarian aid, international cooperation, trade-mark law

C 6/40

EN

Official Journal of the European Union

10.1.2009

Pleas in law and main arguments

Action brought on 5 November 2008 — Alisei v
Commission

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

(Case T-481/08)

(2009/C 6/79)

Community trade mark concerned: The figurative mark representing
a shoe with two stripes, for goods in classes 18, 25 and 28.

Language of the case: Italian

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

Parties

Mark or sign cited: German trade mark registration No 39 950 559
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 944 623
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 944 624
of the figurative mark representing a shoe with three stripes for
goods in class 25; German trade mark registration No 897 134
of the figurative mark representing a shoe with three stripes for
goods in class 25; German designation of
the international
trade mark registration No 391 692 of the figurative mark
representing a shoe with three stripes for goods in class 25;
German designation of the international trade mark registration
No 414 034 of the figurative mark representing three stripes
for goods in class 25; German designation of the international
trade mark registration No 414 035 of the figurative mark
representing three stripes for goods in class 25; German desig-
nation of the international trade mark registration No 414 036
of the figurative mark representing three stripes for goods in
class 25; German designation of the international trade mark
registration No 414 037 of the figurative mark representing
three stripes for goods in class 25.

Decision of the Opposition Division: Upheld the opposition and
rejected the Community trade mark concerned in its entirety

Decision of the Board of Appeal: Annulled the decision of the
Opposition Division

Pleas in law: Infringement of Rules 16(3), 17(2) and 20(2) of
Commission Regulation No 2868/95 (1), thereby also infringing
Article 8(1)(b) of Council Regulation 40/94, as the Board of
Appeal erred in its finding that the applicant did not fulfil the
properly
translation
substantiate the validity, existence and scope of the earlier trade
marks invoked, in particular of German trade mark registration
No 39 950 559.

requirement

thereby

and

not

did

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Applicant: Alisei NGO (Rome,
F. Sciaudone, R. Sciaudone, S. Gobbato, lawyers)

Italy)

(represented

by:

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision D (2007) 8449 of

19 August 2008;

— Order the Commission to compensate for the loss suffered;

— Order the Commission to pay the costs.

Pleas in law and main arguments

that

assistance,

the Commission's

challenges
the procedure

The applicant, a non-governmental organisation active in the
field of international cooperation for development and humani-
tarian
decision
confirming
initiated in June 2006,
concerning the accounting verification of a selection of
contracts concluded with the applicant, was in order. The
Commission had also provided the applicant with the final
report from Ernst & Young, informing it that that report was a
reliable technical basis for taking the necessary measures, in par-
ticular the launching of a recovery procedure for a total amount
of EUR 4 750 121.

The applicant puts forward the following arguments in support
of its action:

— infringement of the principle of sound administration and
diligence in administrative action, in that the applicant was
subjected to an administrative procedure the nature and
rules for implementation of which were quite specific, only
to discover subsequently that that procedure in reality had a
purpose and was conducted in a manner quite different
from what had been communicated to it. In particular, the
defendant decided, first of all, to initiate an accounting verifi-
cation procedure to be carried out through an audit, before
accepting the findings obtained through a different verifica-
tion procedure, a ‘amicable procedure’, of which the appli-
cant was never informed.

10.1.2009

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Official Journal of the European Union

C 6/41

— infringement of the provisions governing limitations, in that
the decision orders, without distinction,
the recovery of
amounts which should not have been claimed because the
defendant's right to demand repayment of those amounts
had been extinguished.

The applicant also alleges infringement of its rights of defence,
and of the principle of proportionality.

Lastly, it asks that the Commission be ordered to compensate
for the loss suffered.

Action brought on 17 November 2008 — Power-One Italy
v Commission

(Case T-489/08)

(2009/C 6/81)

Language of the case: Italian

Action brought on 14 November 2008 — Earle Beauty v
OHIM (SUPERSKIN)

(Case T-486/08)

(2009/C 6/80)

Language of the case: English

Parties

Applicant(s): Liz Earle Beauty Co. Ltd (formerly Liz Earle
Cosmetics Ltd.)
(represented by
(Ryde, United Kingdom)
M. Cover, solicitor)

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
(Trade
Marks and Designs) of 15 September 2008 in case
R 1656/2007-4 and declare that the Community trade mark
concerned (application No 5 967 856) proceed to applica-
tion and registration; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SUPERSKIN’ for
goods and services in classes 3, 5 and 44 — application
No 5 967 856

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
the trade mark concerned is descriptive of the characteristics of
the goods or services for which registration is sought.

Parties

Applicant: Power-One Italy SpA (Terranova, Bracciolini,
(represented by: R. Giuffrida, lawyer, A. Guissani, lawyer)

Italy)

Defendant: Commission of the European Communities

Form of order sought

— Pursuant to Article 288 of the Treaty establishing the Euro-
the European Commission to
pean Community, order
compensate Power One Italy SpA for all the loss suffered
and quantified in the amount of EUR 2 876 188,99 or, in
the alternative, the cost incurred for the PNEUMA project
or,
in the further alternative, such amount as the Court
considers just and appropriate;

— In the event of the applicant's being successful, order the

defendant to pay the costs.

Pleas in law and main arguments

The present action concerns the decision to end the project
known as ‘Pneuma’ and to recover the amount granted in
advance to finance it. The purpose of that project was the crea-
tion of an innovative UPS system for the supply, through the
use of an appropriate reserve of compressed air, of energy for
the installations of the radio equipment serving as bases for
cellular telephone networks. In order to carry out the project,
the applicant concluded an agreement with strategic partners, in
particular with the University of Florence, which was respon-
sible for the planning and development of the practical aspects
of the project and testing the prototypes of the new system,
with ENEA and FEBE ECOLOGIC, for the environmental studies
of the new UPS, and with TELEFONICA MOVILES, which made
available a number of radio equipment bases in Spain in order
to allow for the testing of prototypes in actual operational
conditions.

Pursuant to the aforementioned decision of the Commission,
the applicant had to reimburse the full amount received by way
of advance financing and, in addition, was placed in the position
of having to answer to its own strategic partners who had
brought claims for compensation.
In any event, Power One
completed and delivered the project using its own funds, on the
basis of a legitimate expectation that the Commission would
thereby incurring costs of
continue to grant extensions,
EUR 2 876 188,99 and delivering the fully operational and
functioning equipment in Spain as stipulated in agreements with
the defendant and the partners.