Case T-584/08: Action brought on 30 December 2008 — Cantiere Navale De Poli v Commission
Date: 2008-12-30
Institutions: Court of First Instance
Subjects: European Commission, South Korea, action for annulment (EU), competition, shipbuilding

C 55/44

EN

Official Journal of the European Union

7.3.2009

Nor does the contested regulation pursue any of the objectives
of
the common agricultural policy that are laid down in
Article 33(1) EC.

In order to avoid difficulties in the execution of the annual plan,
the applicant calls on the court to limit the effects of the annul-
ment to the provision on purchases in Article 2 of Regulation
No 983/2008 in conjunction with Annex II thereto.

(1) Commission Regulation (EC) No 983/2008 of 3 October 2008
adopting the plan allocating to the Member States resources to be
charged to the 2009 budget year for the supply of food from inter-
vention stocks for the benefit of the most deprived persons in the
Community (OJ 2008 L 268, p. 3).

(2) Council Regulation (EC) No 1234/2007 of 22 October 2007 estab-
lishing a common organisation of agricultural markets and on
specific
(Single
CMO Regulation) (OJ 2007 L 299, p. 1).

certain agricultural

provisions

products

for

Action brought on 23 December 2008 — DVB Project v
OHIM — Eurotel (DVB)

(Case T-578/08)

(2009/C 55/78)

Language in which the application was lodged: English

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade
mark: The other party to the proceedings before the Board of
Appeal

Decision of the Cancellation Division: Dismissal of the request for
invalidity

Decision of the Board of Appeal: Allowed the appeal and annulled
the contested decision

Pleas in law: Infringement of Article 7(1)(c) of Council Regu-
lation 40/94 as the Board of Appeal wrongly found that a
monopoly on the registered Community trade mark subject of
the application for a declaration of invalidity would seriously
impair the business activities of traders in the field of telecom-
munication; Infringement of Articles 7(3) and 51(2) of Council
Regulation 40/94 as the Board of Appeal failed to analyse the
merits of the issue of acquired distinctiveness raised by the
applicant.

Action brought on 30 December 2008 — Cantiere Navale
De Poli v Commission

(Case T-584/08)

(2009/C 55/79)

Language of the case: Italian

Parties

Applicant: DVB Project (Le Grand Saconnex, Switzerland) (repre-
sented by: W. Pors, lawyer)

Parties

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

Applicant: Cantiere Navale De Poli SpA (represented by: A.
Abate, lawyer, R. Longanese Cattani, lawyer)

Other party to the proceedings before the Board of Appeal: Eurotel
SpA (Milan, Italy)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 14 October 2008 in case R 1387/2007-2;
and

— Annul the decision adopted by the European Commission
on 21 October 2008 on State aid from Italy No C 20/2008
(ex N 62/2008).

— Order the Commission to pay the costs.

— Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of
the application for a
declaration of invalidity: The mark ‘DVB’ for goods and services in
classes 9 and 38

Pleas in law and main arguments

Council Regulation (EC) No 1177/2002 of 27 June 2002
(OJ 2002 L 172, p. 1) is based on Article 87(3)(e) EC and intro-
duced a temporary defensive mechanism for shipbuilding, with
the aim of restoring the market conditions distorted by the anti-
competitive practices of the Korean shipyards. The expiry of the

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