Case T-35/09: Action brought on 26 January 2009 — Procaps v OHIM — Bioframa (PROCAPS)
Date: 2009-01-26
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), designs and models, trade-mark law

21.3.2009

EN

Official Journal of the European Union

C 69/51

Appeal brought on 26 January 2009 by Luigi Marcuccio
against the judgment of the Civil Service Tribunal delivered
on 4 November 2008 in Case F-18/07 Marcuccio v
Commission

(Case T-32/09 P)

(2009/C 69/111)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

— Unlawful findings as regards the alleged manifest inadmissi-

bility of the action at first instance in its entirety.

Complete failure to state adequate reasons and a failure to make
preliminary enquiries as regards the date on which the defence
was lodged and a procedural error in that no account was taken
of
to have regard to the arguments
contained in the defence in so far as made out of time.

the requirement not

— Infringement of the rule that there should be a fair hearing,
as laid down in Article 6 of the European Convention on
Human Rights and Article 47 of the Charter of Fundamental
Rights of the European Union.

Other party to the proceedings: Commission of
Communities

the European

Action brought on 26 January 2009 — Procaps v OHIM —
Bioframa (PROCAPS)

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:

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

in a different formation, for a fresh decision.

Pleas in law and main arguments

is directed against the order of the Civil Service
This appeal
Tribunal of 4 November 2008 in Case F-18/07 Marcuccio v
Commission, which declared the appellant's action to be mani-
festly inadmissible.

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

— Complete failure to state adequate reasons as regards the
classification of the note of 11 October 2005 referred to in
paragraph 3 of the order under appeal as an application
made under Article 90 of the Staff Regulations, with the
result that, in the case at issue, the provisions of Article 90
of the Staff Regulations were applied.

— Complete failure to state adequate reasons as regard the
statements concerning the date on which the note of
11 October 2005 reached the respondent and the date on
which the contested decision took effect.

(Case T-35/09)

(2009/C 69/112)

Language in which the application was lodged: Spanish

Parties

Applicant: Procaps SA (Barranquilla, Colombia) (represented by:
M. Vidal-Quadras Trias de Bes, 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: Biofarma SAS (Neuilly sur Seine, France)

Form of order sought

for Harmonisation

— Annul the decision of the Fourth Board of Appeal of OHIM
Internal Market
(Office
(Trade Marks and Designs) of 24 November 2008 in Case
R 867/2007-4 which was notified to the parties on
25 November 2008.

the

in

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘PROCAPS’ (Trade
mark application No 3.519.394)
for goods and services in
Classes 5, 35, 39, 40, 44.

Proprietor of the mark or sign cited in the opposition proceed-
ings: BIOFARMA, société par actions simplifiée.

Mark or sign cited in opposition: National and international
word mark ‘PROCAPTAN’, for goods in Class 5.

Decision of the Opposition Division: Opposition: Opposition
rejected.

C 69/52

EN

Official Journal of the European Union

21.3.2009

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Incorrect application of Article 9(1)(b) of Regulation
No 40/94 on the Community trade mark.

Action brought on 30 January 2009 — El Corte Inglés v
Commission

(Case T-38/09)

(2009/C 69/113)

Language of the case: Spanish

Parties

Applicant: El Corte Inglés (Madrid, Spain)
Muñiz and M. Baz, lawyers)

(represented by: P.

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

ments. Specifically, the contested decision breaches the prin-
ciple of sound administration and seriously infringes the
applicant's rights of defence on the ground that no adminis-
trative file exists concerning the processing of the contested
decision.

— The contested decision contains an error of assessment by
concluding that the applicant is not in a special situation. In
this case a special situation exists in so far as:

— the Jamaican authorities knew or ought to have known
that that the goods did not satisfy the conditions laid
down for entitlement to the preferential treatment, even
if the exporters had supplied incorrect information,

— the Jamaican authorities committed a serious breach of

their obligations.

— The defendant failed to fulfil

its obligation to ensure the

ACP-EC Agreement is properly applied.

Action brought on 28 January 2009 — A. Loacker SpA v
OHIM

(Case T-42/09)

(2009/C 69/114)

Language in which the application was lodged: Italian

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

Pleas in law and main arguments

Parties

is

action

brought

This
against Commission Decision
C(2008) 6317 final of 3 November 2008 ordering the a poster-
iori recovery of import duties and finding that the remission of
those duties was not justified in a particular case (REM File
03/07).

The applicant imported textiles from Jamaica, imports subject to
the system of preferential treatment laid down in the EU-ACP
Association Agreement provided that they are accompanied by
a EUR. 1 movement of goods certificate, sent by the competent
Jamaican authorities. The certificate was included as evidence
that the goods originated in Jamaica. However, an OLAF investi-
gation in Jamaica concluded that the goods did not acquire
preferential origin status in Jamaica, so that they could not
benefit from preferential treatment.

In response to the request for remission of the tax submitted by
the applicant on the basis of Article 239 of Council Regulation
(EEC) No 2913/92 of 12 October 1992 establishing the Com-
munity Customs Code, the contested decision declared that the
Jamaican authorities had not committed an error of the kind
provided for in Article 220(2)(b) of that regulation and that the
applicant was not in a special situation as a result of the incor-
rect representation of the facts by the exporters.

The applicant claims that the contested decision is null and void
for the following reasons:

— The administrative procedure for

the
contested decision infringes essential procedural require-

the adoption of

Applicant: A. Loacker SpA (Renon,
Italy)
Bilardo, C. Bacchini, M. Mazzitelli, lawyers)

(represented by: V.

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

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

Form of order sought

— Annul the contested decision;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Editrice Quadratum SpA.

Community trade mark concerned: Word mark ‘Quadratum’, regis-
tration application No 4653481, for goods in Class 30.

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

Mark or
‘LOACKER QUADRATINI’, for goods in Class 30.

sign cited in opposition: Community word mark