Case T-536/08: Action brought on 9 December 2008 — Huvis v Council
Date: 2008-12-09
Institutions: Court of First Instance
Subjects: Belarus, China, Malaysia, Saudi Arabia, South Korea, Taiwan, action for annulment (EU), anti-dumping legislation, anti-dumping measure, approximation of laws

C 55/28

EN

Official Journal of the European Union

7.3.2009

Operative part of the order

1. The application for interim relief is dismissed.

2. The costs are reserved.

Infringement of Article 73 of Council Regulation 40/94 as the
Board of Appeal failed to address in a comprehensive manner
the arguments put forward by the applicant and to objectively
state the reasons on which its decision has been based; Infringe-
ment of Article 74 of Council Regulation 40/94 as the Board of
Appeal failed to restrict itself in its examination to the facts,
evidence and arguments put forward by the parties; Infringe-
ment of Article 79 of Council Regulation 40/94 since in its
assessment of the defence of abuse of rights raised by the appli-
cant the Board of Appeal failed to take into account general
principles of procedural law recognized in the Member States.

Action brought on 8 December 2008 — Tuzzi fashion v
OHIM — El Corte Inglés (Emidio Tucci)

(Case T-535/08)

(2009/C 55/52)

Language in which the application was lodged: English

Action brought on 9 December 2008 — Huvis v Council

Parties

Applicant: Tuzzi fashion GmbH (Fulda, Germany) (represented
by: R. Kunze and G. Würtenberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte
Inglés, SA (Madrid, Spain)

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Internal Market
Office
(Trade Marks and Designs) of 23 September 2008 in case
R 1561/2007-2; and

for Harmonisation

the

in

— Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘Emidio
Tucci’, for goods in class 25

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

Mark or sign cited: German trade mark registration No 1 078 843
of the word mark ‘TUZZI’ for goods in class 25; International
trade mark registration No 496 835 with effect in Austria,
France, the Benelux countries and Poland of the word mark
‘TUZZI’
‘TUZZI
FASHION GMBH’ used in the course of trade in Germany for
clothing.

in class 25; Company name

for goods

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council
Regulation 40/94 as the Board of Appeal wrongly assessed the
likelihood of confusion between the trade marks concerned;

(Case T-536/08)

(2009/C 55/53)

Language of the case: English

Parties

Applicant: Huvis Corporation (Seoul, Republic of Korea) (repre-
sented by: J.-F. Bellis, F. Di Gianni, R. Antonini, lawyers)

Defendant: Council of the European Union

Form of order sought

— annul Council Regulation

(EC) No

893/2008

of
10 September 2008, maintaining the anti-dumping duties
on imports of polyester staple fibres originating in Belarus,
the People's Republic of China, Saudi Arabia and Korea
following a partial interim review pursuant to Article 11(3)
of Regulation (EC) No 384/96 (1),
insofar as it does not
repeal the anti-dumping duty applicable to the applicant as
of 29 December 2006, that is, the date on which imports of
polyester staple fibres originating in Taiwan and Malaysia
were subjected to provisional anti-dumping duties, which
the Commission decided not
in its Decision
No 2007/430/EC of 19 June 2007 (2);

to collect

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

this application the applicant, a Korean-based
By means of
company,
seeks partial annulment of Council Regulation
No 893/2008 insofar as it does not repeal the anti-dumping
duty applicable to the polyester staple fibres (PSF) manufactured
by the applicant and originating in Korea as of 29 December
2006. The applicant submits that the same treatment as was
applied in Commission Decision No 2007/430/EC to the PSF
originating in Taiwan and Malaysia should be applied to the PSF
originating in Korea. Therefore, in the applicant's view, the anti-
dumping duty should be repealed as of the same date with
respect to the PSF originating in Korea.

7.3.2009

EN

Official Journal of the European Union

C 55/29

The applicant puts forward two pleas in law in support of its
claims.

Defendant: Council of the European Union

submits

to justify different

treatment. The fact

The applicant
that by maintaining anti-dumping
measures with respect to imports of PSF originating in Korea
while the imports of PSF from Malaysia and Taiwan were not
subjected to anti-dumping measures the European institutions
violated the fundamental principle of non-discrimination. The
forward by the
applicant contests the three arguments put
Council
the
that
complaint in the case of PSF originating in Malaysia and Taiwan
was withdrawn and no definitive finding was made by the
Council cannot, in the applicant's opinion, justify the discrimi-
natory treatment of the case of PSF originating in Korea. The
applicant contests as well that the fact that the Community
interest test applied in the case of PSF originating in Malaysia
and Taiwan was different from the Community test applied in
the case of PSF originating in Korea could justify the discrimina-
tory treatment of the latter. The applicant further submits that,
contrary to Council's findings, the fact that different conclusions
regarding Community interest were reached in the investigations
concerning Malaysia and Taiwan, on the one hand, and Korea,
on the other hand, could neither justify the discriminatory treat-
ment.

The applicant further claims that the decision that termination
of anti-dumping measures on imports of PSF manufactured and
exported by the applicant is not justified on Community interest
grounds is vitiated by fundamental contradictions and incoher-
encies.

(1) OJ L 247, p. 1.
(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating
the anti-dumping proceeding concerning imports of synthetic staple
fibres of polyesters (PSF) originating in Malaysia and Taiwan and
the provisional duties
releasing the amounts secured by way of
imposed (OJ L 160, p. 30).

Action brought on 9 December 2008 — Cixi Jiangnan
Chemical Fiber and Others v Council

(Case T-537/08)

(2009/C 55/54)

Language of the case: English

Parties

Applicant(s): Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai
Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd,
Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa
Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang
Waysun Chemical Fiber Co. Ltd, Zhejiang Anshun Pettechs Fibre
Co. Ltd (China) (represented by: J.-F. Bellis, lawyer, G. Vallera,
Barrister)

Form of order sought

— annul Council Regulation

(EC) No

893/2008

of
10 September 2008, maintaining the anti-dumping duties
on imports of polyester staple fibres originating in Belarus,
the People's Republic of China, Saudi Arabia and Korea
following a partial interim review pursuant to Article 11(3)
of Regulation (EC) No 384/96 (1), with retroactive effect as
of 29 December 2006, that is, the date on which imports of
polyester staple fibres originating in Taiwan and Malaysia
were subjected to provisional anti-dumping duties, which
the Commission decided not
in its Decision
No 2007/430/EC of 19 June 2007 (2);

to collect

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

By means of this application the applicants, China-based compa-
nies, seek annulment of Council Regulation No 893/2008 main-
taining anti-dumping measures with respect to,
inter alia, the
imports of polyester staple fibres (PSF) manufactured by the
applicants and originating in China. The applicants submit that
the same treatment as was applied in Commission Decision
No 2007/430/EC to the PSF originating in Taiwan and Malaysia
should be applied to the PSF originating in China. Therefore, the
anti-dumping duty should be repealed as of the same date, i.e.
29 December 2006, with respect to the PSF originating in
China.

The pleas in law and main arguments put forward by the appli-
cants are identical to those relied on in case T-536/08, Huvis v
Council.

(1) OJ L 247, p. 1.
(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating
the anti-dumping proceeding concerning imports of synthetic staple
fibres of polyesters (PSF) originating in Malaysia and Taiwan and
releasing the amounts secured by way of
the provisional duties
imposed (OJ L 160, p. 30).

Action brought on 9 December 2008 — Rewe-Zentral v
OHIM — Kodi Diskontläden (inéa)

(Case T-538/08)

(2009/C 55/55)

Language in which the application was lodged: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by M. Kinkeldey and A. Bognár, lawyers)