Case T-27/09: Action brought on 19 January 2009 — Stella Kunststofftechnik v OHIM
Date: 2009-01-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beer, trade-mark law

C 82/28

EN

Official Journal of the European Union

4.4.2009

Form of order sought

Action

brought

on

19

January

2009 — Stella

Kunststofftechnik v OHIM

filed in response to the open Call

— annul Commission's decision to reject the bid of the appli-
for Tender
cant,
VT/2008/019 — EMPL EESSI for the ‘Informatics services
and products
(Electronic
Exchange of Social Security Information) project’ (1) commu-
nicated to the applicant by letter dated 30 October 2008
and all further related decisions including the one to award
the contract to the successful contractor;

in the contest of

the EESSI

— order

the Commission to pay the applicant's damages
suffered on account of the tendering procedure in question
for an amount of 883 703,5 EUR;

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

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the
defendant's decision to reject its bid submitted in response to a
call for an open tender VT/2008/019 — EMPL CAD A/17543
for the informatics services and products in the context of the
(Electronic Exchange of Social Security Information)
EESSI
project and to award the contract to the successful contractor.
The applicant further requests compensation for the alleged
damages in account of the tender procedure.

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

First, it argues that the winning tenderer enjoyed a privileged
treatment from the Commission in the context of numerous
other contracts and that it was favoured in the case of the
present call for tenders. Further the applicant claims that it was
systematically discriminated by the defendant
in the same
context.

Second, the applicant submits that the Commission failed to
observe the rules concerning the exclusion criteria of the tender
specifications and therefore infringed Articles 93 and 94 of the
financial regulation (2) and Articles 133a and 134 of its imple-
menting rules as well as Article 45 of Directive 2004/18/EC (3).

Third, the applicant claims that the defendant committed several
manifest errors of assessment in evaluation of the applicant's
tender by the Evaluation Committee.

the applicant contends that

Fourth,
the defendant based its
evaluation of the applicant's tender on general and arbitrary
considerations, failed to motivate its decision and in this context
committed several manifest errors of assessment.

(1) OJ 2008/S 111-148231.
(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).

(3) Directive 2004/18/EC of

the
Council of 31 March 2004 on the coordination of procedures for
the award of public works contracts, public supply contracts and
public service contracts (OJ L 134, p. 114).

the European Parliament and of

(Case T-27/09)

(2009/C 82/50)

Language in which the application was lodged: German

Parties

Applicant: Stella Kunststofftechnik GmbH (Eltville, Germany)
(represented by: M. Beckensträter, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Stella Pack Sp. z o. o. (Lubartow, Republic of Poland)

Form of order sought

— annul

the decision of

the Fourth Board of Appeal of
13 November 2008, notified on 19 November 2008, and
hold that
the application of 22 December 2006 for a
declaration of revocation ought to have been dismissed as
being inadmissible;

— in the alternative, suspend the decision on the application
for a declaration of revocation of 22 December 2006 until
the opposition proceedings in opposition B 863177 have
been concluded in law, and at the same time annul the deci-
sion of 13 November 2008 and that of the Cancellation
Division of 27 February 2008;

— order the intervener to pay the recoverable costs, including

those of the initial proceedings and of the defendant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
revocation has been sought: the word mark ‘Stella’ for goods in
Classes 6, 8, 16, 20 and 21 (Community trade mark No 15 479)

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of revocation: Stella Pack Sp. z o. o

Decision of the Cancellation Division: declaration of revocation of
the Community trade mark concerned for certain goods in
Classes 6, 8, 16 and 20

Decision of the Board of Appeal: dismissal of the applicant's appeal

4.4.2009

EN

Official Journal of the European Union

C 82/29

Pleas in law: Failure to have regard for the conditions governing
admissibility in Regulation (EC) No 40/94 (1) and Regulation
(EC) No 2868/95 (2) which must automatically be complied
with in proceedings for a declaration of revocation.

Pleas in law: inadmissibility of the appeal and absence of use of
the Community trade mark concerned capable of maintaining
in force the right to use it, in accordance with Article 15 and
sentence of Article 50(1) of Regulation (EC)
first
the
No 40/94 (1).

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

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

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

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

Action brought on 21 January 2009 — Park v OHIM —
Bae (PINE TREE)

(Case T-28/09)

(2009/C 82/51)

Language in which the application was lodged: German

Parties

Applicant: Mo-Hwa Park (Hillscheid, Germany) (represented by:
P. Lee, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Chong-Yun Bae (Berlin, Germany)

Form of order sought

— annul the contested decision of the Fourth Board of Appeal
of OHIM of 13 November 2008 in Case R 1882/2007-4;
and

Action brought on 21 January 2009 — Engelhorn v OHIM
— The Outdoor Group (peerstorm)

(Case T-30/09)

(2009/C 82/52)

Language in which the application was lodged: German

Parties

Applicant: Engelhorn KGaA (Mannheim, Germany) (represented
by: W. Göpfert, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
The Outdoor Group Limited (Northampton, United Kingdom)

Form of order sought

— annul Decision R-167/2008-5 of the Fifth Board of Appeal

of OHIM of 28 October 2008; and

— order the defendant to pay the costs of the proceedings.

— order the intervener to pay the costs of the proceedings,
including those incurred during the appeal proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which revocation has
for goods in
the figurative mark ‘PINE TREE’
been sought:
Class 28 (Community trade mark No 318 857)

Proprietor of the Community trade mark: Chong-Yun Bae

Applicant for the declaration of revocation: the applicant

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘peerstorm’ for
goods and services in Class 25 (Community trade mark applica-
tion No 4 115 382)

Proprietor of the mark or sign cited in the opposition proceedings: The
Outdoor Group Limited

Mark or sign cited in opposition: the word mark ‘PETER STORM’
for goods in Class 25 (Community trade mark No 833 566)
and the British trade mark ‘PETER STORM’ for goods in Class 18

Decision of the Cancellation Division: declaration of revocation of
the Community trade mark concerned

Decision of the Opposition Division: opposition rejected

Decision of the Board of Appeal: annulment of the contested deci-
sion and rejection of the application for a declaration of revoca-
tion of the trade mark concerned

Decision of the Board of Appeal: annulment of the decision of the
Opposition Division and rejection of the application for a Com-
munity trade mark