Case T-586/08: Action brought on 24 December 2008 — Kerma v OHIM (BIOPIETRA)
Date: 2008-12-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Italy, action for annulment (EU), trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/45

regulation,
initially set for 31 March 2004, was subsequently
postponed for one year, thus allowing Community shipyards
until 31 March 2005 (the new expiry date of the regulation) to
conclude further contracts for building certain types of cargo
vessel. In support of those contracts, the regulation provides for
aid of up to 6 % of the contract value. The applicant is party to
five contracts for the construction of chemical vessels.

Action brought on 24 December 2008 — Kerma v OHIM
(BIOPIETRA)

(Case T-586/08)

(2009/C 55/80)

Language in which the application was lodged: Italian

the additional

In order to finance all of the contracts during the period from
2002 to 2005,
Italy notified two financing packages of
EUR 10 million each. The Commission authorised the first by
decision of 19 May 2004 but refused, by the contested decision,
to authorise the second financing package. The Commission
maintains that
financing constitutes ‘new aid’
within the meaning of Article 4 of Commission Regulation (EC)
No 794/2004 of 21 April 2004 (OJ 2004 L 140, p. 1) in that it
the
represents more than 20 % of
scheme. The Commission further argues that
the additional
financing is incompatible with the common market in that the
notification was made after 31 March 2005, the date on which
Regulation No 1177/2002 expired.

the original budget of

to prepare the financing for

The applicant submits that it was not possible for the Italian
Government
the contracts by
in a position to have
31 March 2005, since it was not
knowledge of all the contracts concerned: that being the last day
of application of the regulation, the undertakings had the right
to conclude contracts up to and on that day.

The applicant accordingly puts forward the following pleas in
law in support of its action to contest the decision, in particu-
lar:

— infringement of Regulation No 1177/2002 in the light of
in relation to
the

legislature

aims of

the
specific
Article 87(3)(e) EC;

— infringement of Article 4(2)(a) of Commission Regulation
financing of

No 794/2004 in so far as the additional
EUR 10 million has been categorised as ‘new aid’;

— irrelevance of the recommendation of 20 June 2005 of the
WTO Dispute Settlement Body in respect of the shipbuilding
contracts
Regulation
concluded
No 1177/2002;

lawfully

under

Parties

Applicant: Kerma SpA (Puegnago sul Garda, Italy) (represented
by A. Manzoni, lawyer)

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

Form of order sought

— declare that

the trade mark BIOPIETRO conforms with
Article 4 of the Trade Mark Regulation and is not devoid of
any
of
Article 7(1)(b) of that regulation;

character within

the meaning

distinctive

— order OHIM to pay the costs in the event of its being unsuc-

cessful.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BIOPIETRA’ (appli-
cation for registration No 5.658.893), for goods in Class 19.

Decision of the Examiner: Rejection of the application for registra-
tion.

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

in law:

Pleas
application of
Article 7(1)(b) of Regulation (EC) No 40/94 on the Community
trade mark.

and incorrect

Infringement

Action brought on 2 January 2009 — Italy v Commission

— failure to state reasons to substantiate the allegation that
there is no legal basis for authorising the additional finan-
cing;

— breach of the principles of good administration, the right to
a fair hearing, the rights of the defence, equal treatment,
subsidiarity and proportionality.

Parties

(Case T-3/09)

(2009/C 55/81)

Language of the case: Italian

Applicant: Italian Republic (represented by: P. Gentili, avvocato
dello Stato)

Defendant: Commission of the European Communities