Case T-51/09: Action brought on 9 February 2009 — Commission v Antiche Terre
Date: 2009-02-09
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), biomass, electrical energy, energy production, farming sector

C 82/32

EN

Official Journal of the European Union

4.4.2009

Pleas in law: Infringement of Article 43(2) of Council Regulation
40/94 and/or of Rule 22(3) of Commission Regulation
No 2868/95 (1) as the Board of Appeal erred in its finding the
evidence submitted by the other party to the proceedings before
the Board of Appeal was capable of proving use of Spanish
trade mark registration No 255 186;
Infringement of
Article 8(1)(b) of Council Regulation 40/94 as the Board of
Appeal wrongly assessed that there was a likelihood of confu-
sion between the Community trade mark concerned and
Spanish trade mark registration No 2 529 728; Infringement of
Rules 20(7) of Commission Regulation No 2868/95 as the
Board of Appeal stated inapplicable grounds for refusing to
grant a suspension of proceedings pending determination of the
opposition to Community trade mark application No 3 064 219.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Bebio’,
goods in classes 5, 29, 30 and 32

for

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

or

sign cited:

International

Mark
trade mark registration
No 187 436 of the word mark ‘BEBA’ for goods in classes 5, 29
and 30; Community trade mark registration No 3 043 387 of
the word mark ‘BEBA’ for goods in classes 5, 29 and 30

(1) 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).

Decision of the Opposition Division: Partially upheld the opposi-
tion

Action brought on 27 January 2009 — Hipp & Co v OHIM
— Nestlé (Bebio)

(Case T-41/09)

(2009/C 82/56)

Language in which the application was lodged: English

Decision of the Board of Appeal: Dismissed the appeal

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 a likelihood of confusion between the trade marks
concerned

Action brought on 9 February 2009 — Commission v
Antiche Terre

(Case T-51/09)

(2009/C 82/57)

Language of the case: Italian

Parties

Applicant: Hipp & Co (Sachseln, Switzerland) (represented by: A.
Bognár and M. Kinkeldey, lawyers)

Parties

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

Other party to the proceedings before the Board of Appeal: Sociéte
des Produits Nestlé, S.A. (Vevey, Switzerland)

Applicant: Commission of the European Communities (repre-
sented by: A. Dal Ferro, lawyer, V. Joris, Agent)

Defendant: Antiche Terre scarl Società Agricola Cooperativa
(Arezzo, Italy)

Forms of order sought

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
case
of
and Designs)
R 1790/2007-2; and

25 November

2008

in

— Order OHIM to pay the costs.

— Order

the defendant

to repay the principal

(from 4 December 1997 for

sum of
EUR 479 332,40, together with the interest accrued at the
rate set out in Article 5.4.3 of the general conditions of the
Contract (ECB rate + 2 %) from the date of receipt of the
sums
sum of
EUR 461 979,00, and from 18 December 1997 for the sum
of EUR 17 353,40) until 1 April 2003, in addition to the
interest accrued at the same rate from 4 January 2004 until
the date of final settlement, less the sum of EUR 461 979
called on and paid on 25 January 2005;

the

4.4.2009

EN

Official Journal of the European Union

C 82/33

— In the alternative, order the defendant to repay the principal
sum of EUR 479 332,40, together with the interest accrued
at the Italian statutory rate from 4 January 2004 until the
date of final settlement, less the sum of EUR 461 979 called
on and paid on 25 January 2005;

— In any event, order Antiche Terre Società Agricola Coopera-

tiva to pay the costs.

Action brought on 11 February 2009 — Nycomed
Danmark v EMEA

(Case T-52/09)

(2009/C 82/58)

Language of the case: English

Pleas in law and main arguments

Parties

By the present action, brought under Article 238 EC,
the
Commission seeks the repayment of the sums advanced to the
limited liability cooperative Antiche Terre scarl Società Agricola
Cooperativa (‘Antiche Terre’),
in the context of the THERMIE
programme, for the creation of an installation producing electri-
city (10 MWe)
through an innovative biomass combustion
process. The reference contract (No BM/188/96) was drawn up
between the Commission, Antiche Terre (as coordinator) and
two other companies having their seats in Finland and Spain
respectively.

Antiche Terre built up a number of significant delays in
commencing its own task, and it requested several extensions so
as to be able to complete its work, which it obtained. It also
proposed a substantial change to the installation, which would
have meant abandoning the innovative biomass combustion
process and producing energy in substantially smaller quantities
than had been estimated.

The Commission was unable to authorise such a fundamental
change to the project, which would have had no chance of
funding under the THERMIE programme.

Consequently, since it was found that Antiche Terre would not
have completed the installation in accordance with the terms of
the project originally submitted, the Commission was forced to
withdraw from contract BM/188/96, making it clear moreover
that the failure to complete the original project could have
entailed the repayment in whole or in part of the advance paid
to Antiche Terre.

The Commission therefore asked Antiche Terre on a number of
occasions to repay the sums advanced,
in the amount of
EUR 479 332,40, but it did not receive any payment. After
calling on the guarantee, and after further requests for repay-
ment of
the Commission therefore brings the
present action before the Court of First Instance.

the balance,

Applicant: Nycomed Danmark ApS (Roskilde, Denmark) (repre-
sented by: C. Schoonderbeek, H. Speyart van Woerden, lawyers)

Defendant: European Medicines Agency

Form of order sought

— annul the contested decision;

— order the EMEA to pay its own costs and those of Nycomed.

Pleas in law and main arguments

By means of the present application, the applicant seeks the
annulment, pursuant to Article 230 EC and to Article 73a of
Regulation (EC) No 726/2004 (1), as amended by Regulation
(EC) No 1901/2006 (2) of the European Parliament and of the
Council,
of
28 November 2008 of the European Medicines Agency (‘EMEA’)
rejecting its application for a product specific waiver provided
for in Article 11(1)(b) of the aforementioned regulation.

‘EMEA-000194-IPI01-07’

decision

the

of

The applicant applied for such a waiver in respect of an ultra-
sound echocardiographic imaging agent to be marketed under
the brand name Imagify, intended to diagnose coronary artery
disease (‘CAD’)
in adults. Through its contested decision, the
EMEA denied that waiver to the applicants on the grounds that
the disease or condition for which the medicinal product is
intended is not CAD but myocardial perfusion defects, which
also occur in children.

The applicant claims that the contested decision is unlawful in
that it is based on an interpretation and application of the
concept of
‘disease or condition for which the medicinal
product is intended’ within the meaning of Article 11(1)(b) of
Regulation (EC) No 1901/2006 which according to the appli-
cant is incorrect in that it does not take into account the thera-
peutic indication applied for in the concomitant Community
market authorisation application and that myocardial perfusion
defects are not a disease or condition, but a sign of various
diseases.