Case T-489/08: Action brought on 17 November 2008 — Power-One Italy v Commission
Date: 2008-11-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Commission, action for annulment (EU), broadcasting, energy distribution, mobile phone, telecommunications industry, trade-mark law

10.1.2009

EN

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.

C 6/42

EN

Official Journal of the European Union

10.1.2009

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

— uphold the applicant's claims;

— Infringement of Article 10 of Regulation (EC) No 1655/2000
of the European Parliament and of the Council of 17 July
2000 concerning the Financial Instrument for the Environ-
ment (LIFE) (1).

— Inapplicability of Article 14 of the Standard administrative
provisions Life — nature,
in so far as the applicant has
always acted properly and consistently in a spirit of coopera-
tion and has always responded promptly to each of the
Commission's requests. Moreover, the ‘Pneuma’ project was
realised in full, made functional and tested.

— Discriminatory nature of the decision in question and infrin-
gement of the general principle of protection of legitimate
expectations.

(1) OJ L 192, 28.7.2000, p. 1.

Action brought on 17 November 2008 — CM Capital
Markets v OHIM — Carbon Capital Markets (CARBON
CAPITAL MARKETS Emissions Compliance Solutions &
Carbon Finance)

(Case T-490/08)

(2009/C 6/82)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding SA (Madrid, Spain)
(represented by: J. Calderón Chavero and T. Villate Consonni,
lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Carbon Capital Markets Ltd (London, United Kingdom)

— order OHIM to pay the costs of the present proceedings

should they be contested and reject its claims.

Pleas in law and main arguments

Applicant for a Community trade mark: Carbon Capital Markets
Limited.

Community trade mark concerned: Figurative mark ‘CARBON
CAPITAL MARKETS (Emissions Compliance Solutions &
Carbon Finance)’
(Application No 4.480.349), for services in
Class 36.

Proprietor of the mark or sign cited in the opposition proceed-
ings: The applicant.

Mark or sign cited in opposition: Community figurative mark
‘Capital Markets’
(Application No 3.409.281), for services in
Classes 35, 36 and 42; Spanish figurative mark ‘Capital
Markets’, for services in Class 36.

Decision of the Opposition Division: Rejection of the opposi-
tion.

Decision of the Board of Appeal: Rejection of the appeal.

in law:

Pleas
No 40/94 on the Community trade mark.

Infringement of Article 8(1)(b) of Regulation

Order of the Court of First Instance of 17 November 2008
— Hynix Semiconductor v Council

(Case T-383/03) (1)

(2009/C 6/83)

Language of the case: English

The President of the Sixth Chamber has ordered that the case be
removed from the register.

Form of order sought

(1) OJ C 21, 24.1.2004.

— annul the decision of the First Board of Appeal of OHIM of
3 September 2008 in Case R-16/2008-1, which would lead
to the rejection of the contested trade mark in its entirety;