Case T-351/07: Judgment of the Court of First Instance of 17 December 2008 — Somm v OHIM (Community trade mark — Application for Community tri-dimensional mark — Shelter for shade — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character acquired by use — Article 7(3) of Regulation (EC) No 40/94)
Date: 2008-12-17
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), metal structure, parking area, trade-mark law

C 32/32

EN

Official Journal of the European Union

7.2.2009

Judgment of the Court of First Instance of 10 December
2008 — Vitro Corporativo v OHIM — VKR Holding
(Vitro)

(Case T-295/07) (1)

(Community trade mark — Opposition proceedings — Appli-
cation for the Community figurative mark Vitro — Earlier
Community word mark VITRAL — Relative ground for
refusal — Likelihood of confusion — Article 8(1)(b) of Regu-
lation (EC) No 40/94)

Judgment of the Court of First Instance of 16 December
2008 — Mergel and Others v OHIM (Patentconsult)

(Case T-335/07) (1)

(Community trade mark — Application for the Community
word mark Patentconsult — Absolute ground for refusal —
Descriptive character — Article 7(1)(c) of Regulation (EC)
No 40/94)

(2009/C 32/60)

Language of the case: German

(2009/C 32/59)

Parties

Language of the case: Spanish

Parties

Applicant: Vitro Corporativo, SA de CV (Garza García, Nuevo
Léon, Mexico) (represented by: J. Botella Reyna, lawyer)

Defendant: Office for Harmonisation in the Internal Market
J. Laporta Insa,
(Trade Marks and Designs)
acting as Agent)

(represented by:

Other party to the proceedings before the Board of Appeal of OHIM
intervening before the Court of First Instance: VKR Holding A/S
(Søborg, Denmark)

Applicants: Volker Mergel (Wiesbaden, Germany); Klaus Kamp-
fenkel (Hofheim, Germany); Burkart Bill (Darmstadt, Germany);
and Andreas Herden (Wiesbaden) (represented by: G. Friderichs,
lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: S. Schäffner and G.
Schneider, Agents)

Re:

Action brought against the decision of the Fourth Board of
Appeal of OHIM of 25 June 2007 (Case R 299/2007-4)
concerning the registration of the word sign Patentconsult as a
Community trade mark.

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders Mr Volker Mergel, Mr Klaus Kampfenkel, Mr Burkart Bill

and Mr Andreas Herden to pay the costs.

Re:

(1) OJ C 269, 10.11.2007.

Action brought against the decision of the Second Board of
Appeal of OHIM of 31 May 2007 (Case R 1640/2006-2),
relating to opposition proceedings between VKR Holding A/S
and Vitro Corporativo, SA de CV

Operative part of the judgment

The Court:

1. dismisses the action;

2. orders Vitro Corporativo, SA de CV to pay the costs.

(1) OJ C 235, 6.10.2007.

Judgment of the Court of First Instance of 17 December
2008 — Somm v OHIM

(Case T-351/07) (1)

(Community trade mark — Application for Community tri-
dimensional mark — Shelter for shade — Absolute grounds
for refusal — Lack of distinctive character — Article 7(1)(b)
of Regulation (EC) No 40/94 — Lack of distinctive character
acquired by use — Article 7(3) of Regulation (EC) No 40/94)

(2009/C 32/61)

Language of the case: Italian

Parties

Applicant: Somm Srl (San Mauro Torinese, Italy) (represented by:
M. Ferro, lawyer)

7.2.2009

EN

Official Journal of the European Union

C 32/33

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: O. Montalto and P.
Bullock, acting as Agents)

Operative part of the judgment

The Court:

1. Dismisses the action;

Re:

2. Orders Focus Magazin Verlag GmbH to pay the costs.

Action brought against the decision of the First Board of Appeal
of OHIM of 28 June 2007 (Case R 1653/2006-1) concerning
an application for registration of a tri-dimensional sign repre-
senting a shelter for shade as a Community trade mark.

(1) OJ C 269, 10.11.2007.

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders Somm Srl to pay the costs.

(1) OJ C 283, 24.11.2007.

Judgment of the Court of First Instance of 16 December
2008 — Focus Magazin Verlag v OHIM — Editorial Planeta
(FOCUS Radio)

(Case T-357/07) (1)

(Community trade mark — Opposition proceedings — Appli-
cation for Community word mark FOCUS Radio — Earlier
national word marks FOCUS MILENIUM — Relative ground
for refusal — Likelihood of confusion — Article 8(1)(b) of
Regulation (EC) No 40/94)

(2009/C 32/62)

Language of the case: English

Parties

Judgment of the Court of First Instance of 17 December
2008 — Commission v Cooperação e Desenvolvimento
Regional

(Case T-174/08) (1)

financial assistance
(Arbitration clause — Contract
concluded under a specific programme in the field of telematic
applications of common interest — Encata Project — Reim-
bursement of sums advanced — Late-payment interest —
Default procedure)

for

(2009/C 32/63)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Afonso, acting as Agent)

Defendant: Cooperação e Desenvolvimento Regional,
(Setúbal, Portugal)

SA

Re:

Action under Article 238 EC seeking an order that the defen-
dant reimburse part of the amount advanced by the European
Community, together with late-payment interest, under contract
SU 1001 (SU) Encata.

Operative part of the judgment

The Court:

Applicant: Focus Magazin Verlag GmbH (Munich, Germany)
(represented by: B. Müller, R. Schweizer and T. Schwarz,
lawyers)

1. Orders Cooperação e Desenvolvimento Regional, SA to reimburse
the European Communities the sum of

to the Commission of
EUR 63 349,27, together with late-payment interest:

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: D. Botis, acting as
Agent)

Other party to the proceedings before the Board of Appeal of OHIM:
Editorial Planeta, SA (Barcelona, Spain)

— at the rate of 6.29 % per annum from 31 January 2001 to

the date of the present judgment;

— at the annual rate applied under Irish law, that is to say,
currently Article 26 of the Debtors (Ireland) Act 1840, as
amended, up to the rate of 6.29 % per annum from the date
of the present judgment to full clearance of the debt;

2. Orders Cooperação e Desenvolvimento Regional to pay the costs.

Re:

Action brought against the decision of the Fourth Board of
Appeal of OHIM of 30 July 2007 (Case R 269/2005-4) relating
to opposition proceedings between Editorial Planeta, SA, and
Focus Magazin Verlag GmbH.

(1) OJ C 183, 19.7.2008.