Case T-482/08: Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)
Date: 2008-11-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), carriage of goods, trade-mark law

C 32/38

EN

Official Journal of the European Union

7.2.2009

Form of order sought

Form of order sought

— Annulment

of

the

defendant's

decision

(reference:

SG.E.3/MV/psi D(2008) 6991) of 2 September 2008.

Pleas in law and main arguments

The applicant has brought an action against the Commission
decision by which that institution refused full and unrestricted
access to documents connected with a TACIS programme and a
TACIS contract to which the applicant was a party. The appli-
cant claims that access to the documents in question is essential
for his defence in the action filed by the Commission against
him, following termination of the TACIS contract, for reimbur-
sement of the monies paid in advance.

In support of his action the applicant claims, first, that general
principles of Community law have been infringed, in particular
the right to sound administration and the right to due process,
because he, as a concerned party, must be given the possibility
to obtain full and unfettered access to documents necessary for
his defence and subsequent vindication of his own claims
against the Commission.

The applicant also claims, secondly, that a right to full and
unfettered access
from Regulation (EC)
No 1049/2001 (1), inasmuch as the Commission erred, in par-
ticular, in the exercise of its discretionary powers under Arti-
cles 4 and 9 of that regulation.

to the files arises

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ 2001 L 145,
p. 43).

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 9 September 2008 (Case R 1858/2007-4);
and

— order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Word mark ‘Atlas Transport’ for trans-
port operations (transport of goods) in Class 39 (Community
trade mark No 545 681).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: A. Hartmann.

Decision of the Cancellation Division: Dismissal of the application.

Decision of the Board of Appeal: Granting of the application for a
declaration that the registration has lapsed.

Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regu-
lation (EC) No 2868/95 (1), in so far as an incorrect standard
was applied to the proof of use preserving the rights held and
as evidence submitted was incorrectly assessed; breach of the
procedural requirements of the right to a hearing in accordance
with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the
duty to give reasons under [Rule] 73(1) of Regulation (EC)
No 2868/95; incorrect assessment.

(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).

Action brought on 11 November 2008 — Atlas Transport
v OHIM — Hartmann (ATLAS TRANSPORT)

(Case T-482/08)

(2009/C 32/74)

Language in which the application was lodged: German

Action brought on 11 November 2008 — Longevity Health
Products v OHIM — Merck (Kids Vits)

(Case T-484/08)

(2009/C 32/75)

Language in which the application was lodged: German

Parties

Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (repre-
sented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus,
lawyers)

Parties

Applicant: Longevity Health Products,
(represented by: J. Korab, lawyer)

Inc.

(Nassau, Bahamas)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Alfred Hartmann (Leer, Germany)

Other party to the proceedings before the Board of Appeal of OHIM:
Merck KGaA (Darmstadt, Germany)