Case T-1/09: Action brought on 5 January 2009 — Dornbracht v OHIM — Metaform Lucchese (META)
Date: 2009-01-05
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), designs and models, trade-mark law

C 69/44

EN

Official Journal of the European Union

21.3.2009

Form of order sought

Action brought on 5 January 2009 — Dornbracht v OHIM
— Metaform Lucchese (META)

— annul the decisions of the Commission to evaluate the appli-
cant's bids as not successful and award the contracts to the
successful contractor;

(Case T-1/09)

(2009/C 69/98)

Language in which the application was lodged: German

— order

the Commission to pay the applicant's damages
suffered on account of the tendering procedure in question
for an amount of 920 000 EUR to be increased up to
1 700 000 EUR depending on the final amount of the CITL
project;

Parties

— order the Commission to pay the applicant's legal and other
costs and expenses incurred in connection with this applica-
tion, even if the current application is rejected.

Pleas in law and main arguments

Applicant: Aloys F. Dornbracht GmbH & Co. KG (Iserlohn,
Germany) (represented by: P. Mes, C. Graf von der Groeben, G.
Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt and M.
Bergermann, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Metaform Lucchese SpA (Monsagrati, Italy)

In the present case the applicant seeks the annulment of the
defendant's decisions to reject its bids submitted in response to
a call for an open tender ENV.C2/FRA/2008/0017 regarding the
‘Emission Trading Scheme — CITL/CR’ (1) and to award the
contract
further
to the successful contractor. The applicant
requests compensation for the alleged damages in account of
the tender procedure.

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Design) of 3 November 2008 (R 1152/2006-4);

— Order the defendant to pay the costs including those costs

incurred before the Board of Appeal.

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

Pleas in law and main arguments

First, it argues that the Commission committed several manifest
errors of assessment while evaluating the three bids submitted
by the applicant to the three Lots of the tender respectively.

Second, the applicant submits that the Commission failed to
observe the principles of transparency and equal treatment and
therefore infringed relevant provisions reflecting these principles
the financial regulation (2).
such as Articles 92 and 100 of
Moreover, the applicant argues that the contracting authority
infringed its obligation to sufficiently state reasons for its deci-
sion. It claims as well that the Commission failed to provide it
with additional
information that it requested after the award
decision regarding the merits of the successful tenderer. Further-
the contracting authority
more,
applied criteria that were not set out in advance and thus were
unknown to the candidates.

the applicant submits that

(1) OJ 2008/S 72-096229.
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ L 248, p. 1).

Applicant for a Community trade mark: Aloys F. Dornbracht GmbH
& Co. KG.

Community trade mark concerned: the word mark ‘META’ for goods
in Classes 9, 11, 20 and 21 (Application No 3 081 271).

Proprietor of the mark or sign cited in the opposition proceedings:
Metaform Lucchese SpA.

Mark or sign cited in opposition: the figurative mark ‘METAFORM’
for goods in Classes 6, 11, 20, 21 and 24 (Community trade
mark No 1 765 361), the Italian figurative mark (Trade mark
No 587 108) and the international figurative mark (Trade mark
No 603 054) also for goods in Classes 6, 11, 20, 21 and 24.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1),
there is no likelihood of confusion
between the marks at issue.

in that

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

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