Case T-9/09 P: Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission
Date: 2009-01-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), appeal, health expenditure, redemption, social security

C 55/46

EN

Official Journal of the European Union

7.3.2009

Form of order sought

— Annul the Commission Decision of 21 October 2008 on
State aid C 20/2008 (ex N 62/2008) which Italy is planning
to implement through a modification of scheme N 59/2004
concerning a temporary defensive mechanism to ship-
building, registered as number C(2008)6015 final, notified
to the Italian Republic on 22 October 2008 by note of
22 October 2008 No SG-Greffe (2008) D/206436.

Pleas in law and main arguments

The decision contested in the present case is the same as that
contested in Case T-584/08 Cantiere Navale De Poli v Commission.

The pleas in law and main arguments are similar to those put
forward in that case.

or

sign

Mark
‘UniSECTOR’,
in Classes 35 and 36.

cited

opposition: German word marks
‘UniDynamicFonds’ and ‘UniGarant’, for services

in

Decision of the Opposition Division: Opposition upheld in respect
of the services in Class 36.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC)
No 40/94 on the Community trade mark. The applicant argues
that the contested decision did not take account of the powers
of perception of the public at which the services covered are
directed or of the non-existent or minimal distinctiveness of the
prefix ‘Uni’.

Action brought on 5 January 2009 — UniCredit v OHIM
— Union Investment Privatfonds (UniCredit)

(Case T-4/09)

(2009/C 55/82)

Appeal brought on 15 January 2009 by Luigi Marcuccio
against the order of the Civil Service Tribunal delivered on
F-133/06 Marcuccio v
4 November 2008 in Case

Commission

(Case T-9/09 P)

(2009/C 55/83)

Language in which the application was lodged: Italian

Language of the case: Italian

Parties

Parties

Applicant: UniCredit SpA (Rome,
Floridia, lawyer, and R. Floridia, lawyer)

Italy)

(represented by: G.

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

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

Other party to the proceedings: Commission of
Communities

the European

Other party to the proceedings before the Board of Appeal of OHIM:
Union Investment Privatfonds GmbH (Frankfurt am Main,
Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM
delivered on 3 November 2008 in Case R 1449/2006-2,
relating to opposition proceedings No B 699.746.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Multi-coloured figurative mark
‘1 UniCredit’ (the number one being 45° inclined to the right
and impressed on the spherical
logo) (registration application
No 2.911.105), for goods and services in Classes 9, 16, 35, 36,
38, 39, 41 and 42.

Form of order sought by the appellant

— In every case

(A.1) set aside in its entirety and without exception the

order under appeal;

(A.2) declare the action at first instance to be admissible in

full.

— As a primary remedy:

(B.1) uphold in their entirety and without exception the
appellant's pleas in law set out in the application at
first instance;

(B.2) order

the respondent

to pay the appellant's costs
relating to this appeal and to the proceedings at first
instance;

— or, in the alternative:

Proprietor of the mark or sign cited in the opposition proceedings:
Union Investment Privatfonds GmbH.

(B.3) refer the case back to the Civil Service Tribunal, sitting

in a different formation, for a fresh decision.

7.3.2009

EN

Official Journal of the European Union

C 55/47

Pleas in law and main arguments

This appeal
is directed against the order of the Civil Service
Tribunal of 4 November 2008 in Case F-133/06 Marcuccio v
Commission.

In support of the forms of order sought by him, the appellant
raises the following pleas in law:

(a) complete failure to carry out preliminary investigations and
failure to rule on a fundamental aspect of the dispute, in so
far as the order under appeal fails to adjudicate on the appli-
cation for a declaration that there is no legal basis for the
decision contested before the Civil Service Tribunal.

(b) complete failure to state adequate reasons in the order under
appeal as regards the inadmissibility of the requests that ‘the
Commission be ordered to return his personal property to
the applicant’, ‘that the contested decision be annulled’ and
of ‘the application for damages’, as regards the order that
the appellant should pay the costs, and distortion and misre-
presentation of the facts, complete failure to carry out any
preliminary investigations, confusion and irrationality, and
also the erroneous and incorrect interpretation and applica-
tion of the Community legislation and case-law.

(c) a procedural error,

in that no account was taken of the
requirement not to have regard to the arguments contained
in the defence in so far as made out of time by the respon-
dent, in a manner which was prejudicial to the interests of
the appellant.

(d) infringement of the rules relating to a fair hearing.

Action brought on 14 January 2009 — Formula One
Licensing v OHIM — Racing — Live (F1 — Live)

(Case T-10/09)

(2009/C 55/84)

Language in which the application was lodged: English

Parties

Applicant:
The Netherlands) (represented by: B. Klingberg, lawyer)

Formula One

Licensing

BV

(Amsterdam,

— Order the other party to the proceedings before the Board
of Appeal to pay the costs of the proceedings before the
defendant.

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 ‘F1 — Live’,
for goods and services in classes 16, 38 and 41

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

or

sign cited:

International

trade mark registration
Mark
No 732 134 of the word mark ‘F1’ for goods and services in
classes 16, 38 and 41; German trade mark registration
No 30 007 412 of the word mark ‘F1’ for services in class 41;
United Kingdom trade mark registration No 2 277 746 D of
the word mark ‘F1’ for goods and services in classes 16 and 38;
Community trade mark registration No 631 531 of the figura-
tive mark ‘F1 Formula 1’ for goods and services in classes 16,
38 and 41; other marks such as ‘F1 Racing Simulation’, ‘F1 Pole
Position’ and ‘F1 Pit Stop Café’

Decision of the Opposition Division: Rejected the Community trade
mark application

Decision of the Board of Appeal: Annulled the contested decision,
rejected the opposition and allowed the Community trade mark
application to proceed

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation 40/94 as the Board of Appeal wrongly assessed that there
was no likelihood of confusion between the trade marks
concerned; infringement of Article 8(5) of Council Regulation
40/94 as the Board of Appeal failed to find that use of the
Community trade mark concerned would without due cause
take unfair advantage of, and be detrimental to, the distinctive
character or the repute of the applicant's earlier trade marks.

Action brought on 14 January 2009 — Özdemir v OHIM
— Aktieselskabet af 21. november 2001 (James Jones)

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

Other party to the proceedings before the Board of Appeal: Racing —
Live SA (Montpellier, France)

(Case T-11/09)

(2009/C 55/85)

Language in which the application was lodged: English

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 16 October 2008 in case R 7/2008-1;

— Order the defendant to pay the costs of proceedings; and

Parties

Applicant: Rahmi Özdemir (Dreieich, Germany) (represented by:
M. Heinrich, I. Hoes, C. Schröder, K. von Werder and J. Witten-
berg, lawyers)