Case T-38/09: Action brought on 30 January 2009 — El Corte Inglés v Commission
Date: 2009-01-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Jamaica, action for annulment (EU), originating product, textile product, trade-mark law

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