Case T-557/08: Action brought on 18 December 2008 — mPAY24 v OHIM — Ultra (MPAY)
Date: 2008-12-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), electrical equipment, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/35

Action brought on 16 December 2008 — iPublish Ganske
a
Interactive Publishing v OHIM (representation of

Form of order sought

navigational device)

— annul the contested decision;

(Case T-555/08)

(2009/C 55/63)

— order the Commission to pay the costs.

Pleas in law and main arguments

Language in which the application was lodged: German

Parties

Applicant:
(Hamburg, Germany) (represented by V. Knies, lawyer)

iPublish Ganske

Interactive

Publishing GmbH

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

3 October 2008 in Case R 709/2008-4 and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional trade mark
representing a navigational device in the colours black and blue,
characterised inter alia by a blue lateral stripe, for goods and
services in Classes 9, 39 and 42 (application No 6 092 639).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), since the trade mark applied for has the required
distinctive character.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

By means of this application the applicant seeks annulment
pursuant
to Article 230 EC of Commission Decision
C(2008) 5912 final of 7 October 2008 (Case COMP/39.562 —
Slovakian Postal Law) by which the Commission found Slova-
kian postal legislation relating to hybrid mail services contrary
to Article 86(1) read in conjunction with Article 82 EC to the
extent that it reserves to the applicant the delivery of hybrid
mail items.

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

First, it submits that the Commission violated the Community
law principle of sound administration by failing to duly investi-
in the applicant's
gate all the facts and interests involved as,
opinion,
the contested decision is based on a number of
assumptions. The applicant further states that the Commission
violated the duty to state adequate reasons as laid down in
Article 253 EC.

Second, the applicant claims that the Commission violated the
applicant's right to be effectively heard.

it contends that the Commission committed manifest
Third,
errors in assessment and interpretation, in fact and in law, of
the lawfulness of the granting of exclusive rights in the postal
sector as a result of which it gave a wrong application to
Articles 86 EC and 82 EC.

Fourth, the applicant submits that by adopting a fundamentally
different and unprecedented approach with regard to the defini-
tion of the relevant market, the Commission has violated the
principles of legal certainty and legitimate expectations.

Action brought on 17 December 2008 — Slovenská pošta
v Commission

(Case T-556/08)

(2009/C 55/64)

Action brought on 18 December 2008 — mPAY24 v
OHIM — Ultra (MPAY)

(Case T-557/08)

(2009/C 55/65)

Language in which the application was lodged: English

Language of the case: English

Parties

Parties

Applicant: Slovenská pošta a.s. (Banská Bystrica, Slovak Republic)
(represented by: O. Brouwer, C. Schillemans, M. Knapen,
lawyers)

Defendant: Commission of the European Communities

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: H.
Z. Zeiner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ultra d.o.
o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

C 55/36

EN

Official Journal of the European Union

7.3.2009

Form of order sought

Form of order sought by the appellant

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 September 2008 in case R 221/2007-1
to the extent that the opposition filed by the applicant has
been rejected; and

— Order the defendant and the other party to the proceedings

before the Board of Appeal to pay the costs.

— Set aside the judgment of

the Civil Service Tribunal of

14 October 2008 in Case F-74/07 Meierhofer v Commission;

— Each party to bear its own costs.

Pleas in law and main arguments

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 ‘MPAY’, for
goods and services in classes 9, 35, 36, 37, 38 and 42 — appli-
cation No 3 587 896

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

or

sign cited: Community

Mark
trade mark registration
No 2 061 656 of the word mark ‘MPAY24’ for goods and
services in classes 9, 16, 35, 36 and 38; Austrian trade mark
registration No 200 373 of the word mark ‘MPAY24’ for goods
and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark appli-
cation in its entirety

Decision of the Board of Appeal: Partial 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.

Appeal brought on 19 December 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 14 October 2008 in
Case F-74/07 Meierhofer v Commission

(Case T-560/08 P)

(2009/C 55/66)

Language of the case: German

Parties

Appellant: Commission of the European Communities (repre-
sented by J. Currall and B. Eggers, acting as Agents)

Other party to the proceedings: S. Meierhofer (Munich, Germany)

The appeal is brought against the judgment of the Civil Service
Tribunal of the European Union of 14 October 2008 in Case
F-74/07 Meierhofer v Commission, in which the Tribunal set aside
the
in Competition
selection
EPSO/AD/26/05 of 19 June 2007 for infringement of the duty
to state reasons.

decision

board

the

of

By the contested decision, the candidate's request for review of
the selection board's decision that the candidate had not passed
the oral test of the competition was dismissed. The candidate
had fallen short of the required minimum mark in the oral test
by half a point. According to the competition notice, the oral
test was assessed by a single overall mark.

The appeal is directed against the requirements of the duty to
state reasons on a selection board and the review criteria of the
Community judicature. The Commission challenges in particular
the conclusion of the Civil Service Tribunal that in ‘particular
circumstances’, for example in the case of a mark just under the
minimum number of points, the duty to state reasons was not
satisfied by communicating to the candidate excluded at the oral
stage only a single mark leading to exclusion.

The Commission argues that that approach leads to legal uncer-
tainty:

— First, the duty to state reasons must,

in accordance with
consistent case-law, be reconciled with the preservation of
confidentiality which applies to the work of a selection
board pursuant to Article 6 of Annex III to the Staff Regula-
tions, and which forbids the dissemination of the opinions
of individual members of the selection board and the disclo-
sure of details in relation to the assessment of the applicants
personally or in comparison with others.

— Second, the comparison drawn by the Tribunal with cases
concerning access to documents is inappropriate, since
Article 6 of Annex III makes no provision for exceptional
cases or the balancing of interests.

— Third, the Tribunal overlooked the case-law according to
which the duty to state reasons must stand in a propor-
tionate relationship to the measure in question, and is
simply designed to enable the Tribunal to review the legality
of the decision. Since subsequent review of an oral test by
the Community judicature is impossible in the nature of
things, the latter has hitherto essentially confined its review
to compliance with the competition regulations and the
advertising of the competition.