ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 20/26

Action brought on 5 December 2006 — Heijmans v Commission

(Case T-360/06)

(2007/C 20/39)

Language of the case: Dutch

Parties

Claimant: Heijmans NV (represented by: M.F.A.M. Smeets and A.M. van den Oord, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul in whole or in part the decision addressed to the claimant;

— set aside or reduce the fine imposed on the claimant;

— order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The claimant is challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), whereby a fine was imposed on the claimant for breach of Article 81 EC.

The claimant first submits that there has been a breach of Article 81 EC and of Articles 2, 7 and 23(3) of Regulation No 1/2003. According to the claimant, the Commission has not proved that the claimant is a unitary organisation of natural persons and of material and immaterial assets which acted contrary to Article 81 EC by regulating the fixing of bitumen prices in the Netherlands. Furthermore, the claimant contends, there is no basis in law on which the claimant can be held principally liable and that determination of liability is unreasonable.

In support of its action, the claimant also relies on the similar pleas and arguments submitted by the claimant in Case T-358/06 Wegenbouwmaatschappij J. Heijmans B.V. v Commission.
EN Official Journal of the European Union C 129/20

Action brought on 8 April 2007 — Spira v Commission

(Case T-108/07)

(2007/C 129/36)

Language of the case: English

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerpen, Belgium) (represented by: J. Bourgeois, Y. van Gerven, F. Louis and A. Vallery, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission decision of 26 January 2007, pursuant to Article 7(2) of Council Regulation No 773/2004, in case COMP/38.826/B-2 — Spira/De Beers/DTC Supplier of Choice;

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

Pleas in law and main arguments

The applicant contests the Commission's decision of 26 January 2007 in competition Case COMP/38.826/B-2 — Spira/De Beers/DTC Supplier of Choice, by which the Commission rejected the applicant's complaint regarding violations of Articles 81 and 82 EC in connection with the Supplier of Choice system applied by the De Beers Group for the distribution of rough diamonds, with the reasoning that there is not sufficient Community interest to act further on the applicant's complaint.

The applicant alleges that De Beers — a producer of rough diamonds who, according to the applicant, was mainly involved upstream with the sale of rough diamonds — is trying through its Supplier of Choice system to extend its control of the market to cover the entire diamond pipeline from mine to consumer, i.e. also the downstream markets.

In support of its application, the applicant invokes three pleas in law.

Firstly, the applicant claims that the Commission failed to honour its duty to conduct a careful and impartial investigation of the complaint and to examine with proper care and impartiality the anticompetitive practices denounced in the complaint.

Secondly, the applicant alleges that the Commission could not claim that there was a lack of sufficient Community interest to act on the complaint, in light of the size of the undertaking involved, the geographic scope of the anticompetitive practices and the damage to competition and the internal market caused by the infringements.

Thirdly and finally, the applicant submits that the Commission concluded to the absence of sufficient Community interest on the basis of an erroneous assessment, in fact and in law, of the circumstances of the case since:

1) the Commission failed to take into account the manifest publicly stated anticompetitive object of De Beers' limited selective distribution system;

2) the Commission could not assess the anticompetitive effects of the De Beers' distribution system without first assessing De Beers' dominance and market power;

3) the Commission failed to take into account the numerous elements brought to its attention in the complaint demonstrating the inherently abusive and anticompetitive nature of the system;

4) the Commission wrongly assessed the effectiveness of the revised Terms of Reference for the Ombudsman that De Beers had introduced to resolve disputes as to the implementation of the distribution system; and
EN Official Journal of the European Union C 82/45

Action brought on 6 February 2007 — ENI v Commission

(Case T-39/07)

(2007/C 82/97)

Language of the case: Italian

Parties

Applicant: ENI SpA (Rome, Italy) (represented by: Prof. G.M. Roberti and I Perego, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul that part of the contested decision which holds the applicant responsible for the conduct that is being penalised;

— annul or reduce the fine imposed under Article 2 of the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the same decision that is contested in Case T-38/07 Shell Petroleum and Others v Commission.

ENI considers the contested decision to be unlawful in that it imputes liability to it solely on the ground of its role as the head of the group which controls the entire share capital of the company that has been held liable for the alleged collusion complained of. In those circumstances, the applicant submits that:

— the Commission has based its decision essentially on an a presumption of strict liability connected to ownership structure that is not borne out and is contrary to the principles laid down by practice and in Community case-law relating to the application of Article 81 EC in connection with groups of companies. Such an approach also breaches the basic principle that liability and penalties must be specific to the offender and the principle of legality, being the result of clear errors of assessment of the factual material provided by ENI to rebut the Commission's presumption. In this connection, the Commission failed properly to state the reasons for its assessment, in breach of the requirement laid down in Article 253 of the EC Treaty.

— moreover, the contested decision does not even take into account the principle of the limited liability of capital companies to be found in company law that is common to the laws of all the Member States, to international legal practice and to Community law itself, an approach which, at the same time, appears to be inconsistent with the criteria laid down for the implementation of Community competition rules in cases involving succession/transfer. The contested decision similarly fails totally to provide reasons in respect of those issues.

ENI therefore seeks the annulment of or, at least, a considerable reduction in the fine imposed, given that the Commission:

— has failed to assess the impact on the market concerned of the offending conduct allegedly established;

— improperly established the aggravating circumstance of repeated infringement, referring, moreover, to decisions under Article 81 EC dating back many years which did not in any way concern the applicant, even by virtue of its role as head of a group.
EN Official Journal of the European Union C 211/40

Action brought on 4 July 2007 — Bavaria v Commission

(Case T-235/07)

(2007/C 211/76)

Language of the case: Dutch

Parties

Applicant: Bavaria NV (represented by: O.W. Brouwer, D. Mes and A.C.E. Stoffer, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— set aside in whole or in part the Commission decision of 18 April 2007 relating to a proceeding under Article 81 EC (Case COMP/B-2/37.766 — Netherlands beer market — C(2007) 1697 final) to the extent to which that decision concerns Bavaria NV;

— in the alternative, reduce the fine imposed on Bavaria NV;

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

Pleas in law and main arguments

The applicant is challenging the Commission decision of 18 April 2007 relating to a proceeding under Article 81 EC (Case COMP/B-2/37.766 — Netherlands beer market), by which a fine was imposed on the applicant.

In support of its application, the applicant first submits that there has been an infringement of the principle of sound administration in so far as the Commission failed to institute a full, careful and impartial investigation.

Second, it is claimed that the Commission breached Article 81 EC through manifest errors of appraisal, misapplication of the law in establishing the existence of the breach, disregard for the presumption of innocence, and infringement of the principle of legality and of the obligation under Article 253 EC to state reasons.

Third, the applicant contends that the Commission erred in its determination of the duration of the breach.

Fourth, it is alleged that, in determining the level of the fine imposed on the applicant, the Commission breached Article 23 of Regulation No 1/2003 (1), the guidelines on fines based on that regulation (2), the principle of equality and the principle of proportionality.

Fifth, the applicant alleges that there was a manifest failure by the Commission to carry out its investigation within a reasonable time-frame inasmuch as that investigation lasted more than seven years.

Sixth, the applicant claims that there has been an infringement of essential procedural requirements, of the principle of sound administration and the rights of the defence, consisting in the refusal to grant it access to the replies of other breweries to the statement of objections and to sections of the Commission's file of crucial importance for the applicant's defence.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) Commission Notice — Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).
EN Official Journal of the European Union C 170/36

Action brought on 4 June 2007 — Comité de défense de la viticulture charentaise v Commission

(Case T-192/07)

(2007/C 170/69)

Language of the case: French

Parties

Applicant: Comité de défense de la viticulture charentaise (Committee for the protection of wine-growing in the Charente) (Sainte-Sévère, France) (represented by: C.-E. Gudin, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission decision No SG-Greffe (2007) D-20276 of 3 April 2007 addressed to the applicant's representative and thus declare void the measure contested in this action;

— declare null and void in its entirety the Commission's decision by which it dismisses the applicant's complaint.

Pleas in law and main arguments

By decision of 3 April 2007 the Commission decided not to allow the applicant's complaint concerning the alleged infringement of Article 81 EC by the Institut National des Appellations d'Origine (INAO) (National Institute of Designations of Origin) in France and the alleged infringement of Articles 81 EC and 82 EC by the major firms trading in cognac spirit (Case COMP/38863/B2-MODEF). By this action, the applicant is seeking the annulment of that decision.

In support of its action, the applicant puts forward three pleas.

The first plea relates to the alleged lack of competence of the Commission member who was the signatory to the contested measure, when he signed it ‘on behalf of the Commission’.

Second, the applicant submits that the decision did not contain a sufficient statement of reasons in so far as the Commission did not respond in the letter rejecting the complaint to all the information submitted by the applicant.

By its third plea, the applicant claims that the Commission did not give sufficiently serious consideration to the complaint.
EN Official Journal of the European Union C 235/14

Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS)

(Case T-277/07)

(2007/C 235/25)

Language in which the application was lodged: German

Parties

Applicant: Secure Computing Corporation (Minnesota, United States) (represented by: H. P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Investronica, SA

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case R 1063/2006-1;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘SECUREOS’ for goods in Class 9 (Application No 2 659 944).

Proprietor of the mark or sign cited in the opposition proceedings: Investronica, S.A.

Mark or sign cited in opposition: The word mark ‘SECUREURO’ (Community trade mark No 2 126 290) for goods and services in Classes 7, 9, 16, 35, 36, 37 and 42 and the figurative mark ‘secureuro’ (Community trade mark No 2 418 135) for goods and services in Classes 7, 9, 16, 35 and 36.

Decision of the Opposition Division: Grant of the opposition and rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1), Article 73 and Article 74(1), in fine, of Regulation (EC) 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).
EN Official Journal of the European Union C 8/27

Action brought on 19 November 2007 — Okalux v OHIM — Messe Düsseldorf (OKATECH)

(Case T-419/07)

(2008/C 8/49)

Language in which the application was lodged: German

Parties

Applicant: Okalux GmbH (Marktheidenfeld, 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: Messe Düsseldorf GmbH

Form of order sought

— Annul the decision of the Second Board of Appeal of 3 September 2007 in Case R 766/2007-2, notified on 18 September 2007, and dismiss the application for partial revocation of 16 December 2006 of Community trade mark No 915 058 for the reasons stated in the appeal of 16 May 2007;

— Alternatively, refer the case back for decision on the appeal of 16 May 2007 to the Cancellation Division;

— Order the defendant or the other parties to the proceedings before the Board of Appeal to pay the reimbursable costs, including the costs of the main proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘OKATECH’ for goods and services in classes 6, 19 and 42 (Community trade mark No 915 058).

Proprietor of the Community trade mark: Okalux GmbH

Applicant for the declaration of invalidity: Messe Düssseldorf GmbH

Decisions of the Cancellation Division: Declaration of the invalidity of the trade mark concerned for services in class 42; revocation of that decision with regard to the costs.

Decision of the Board of Appeal: Dismissal of the appeal as inadmissible.

Pleas in law: In particular, infringement of Article 57 and 77a of Regulation (EC) No 40/94 (1) and violation of the right to be heard.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 37/32

Action brought on 10 December 2007 — WellBiz v OHIM — Wild (WELLBIZ)

(Case T-451/07)

(2008/C 37/51)

Language in which the application was lodged: German

Parties

Applicant: WellBiz Verein, WellBiz Association (Eschen, Liechtenstein) (represented by: M. Schnetzer)

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

Other party to the proceedings before the Board of Appeal: Rudolf Wild GmbH & Co. KG (Eppelhein, Germany)

Form of order sought

— To annul the decision of the First Board of Appeal of 2 October 2007 in Case R 1575/2006-1;

— To reject Opposition No B 809 394 of the opponent of 9 March 2005;

— To order OHIM and the opponent to pay the costs of the present case and also those incurred in the opposition and appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘WELLBIZ’ in respect of services in Classes 35 and 41 (application No 3 844 479).

Proprietor of the mark or sign cited in the opposition proceedings: Rudolf Wild GmbH & Co. KG.

Mark or sign cited in opposition: the word mark ‘WILD.BIZ’ for services in Classes 38, 41 and 42 (Community trade mark No 2 225 175), the opposition being based on some of the services in Class 41.

Decision of the Opposition Division: Opposition upheld in relation to all the contested services in Class 41.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the marks in question differ phonetically, figuratively and conceptually, and the mark cited in opposition does not enjoy a particularly high degree of recognition and does not therefore possess a high level of distinctiveness.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
EN Official Journal of the European Union C 22/50

Appeal brought on 30 November 2007 by Nikos Giannopoulos against the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06, Giannopoulos v Council

(Case T-436/07 P)

(2008/C 22/94)

Language of the case: French

Parties

Appellant: Nikos Giannopoulos (Wezembeek-Oppem, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, Lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

— declare the present appeal admissible;

— annul the judgment of the Civil Service Tribunal delivered on 20 September 2007 in Case F-111/06;

— uphold the claims for annulment and for compensation submitted by the appellant at first instance;

— order the defendant at first instance to pay all the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

In support of his appeal, the appellant puts forward pleas in law alleging failures to state reasons and manifest errors of assessment in the response given by the Civil Service Tribunal in relation to the first plea in law, alleging breach of Article 31(2) of the Staff Regulations, which the appellant put forward in the proceedings at first instance.
EN Official Journal of the European Union C 51/48

Action brought on 18 December 2007 — Nokia v OHIM — Medion (LIFE BLOG)

(Case T-460/07)

(2008/C 51/90)

Language in which the application was lodged: English

Parties

Applicant: Nokia Oyj (Helsinki, Finland) (represented by: J. Tanhuanpää, lawyer)

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

Other party to the proceedings before the Board of Appeal: Medion AG (Essen, Germany)

Form of order sought

— The decision of 2 October 2007 of the Second Board of Appeal in Case R 141/2007-2 should be set aside in its entirety and the case should be remitted to the OHIM for registration of the applicant's trade mark;

— the respondent should be ordered to pay the costs of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark ‘LIFE BLOG’ for goods and services in class 9, 38 and 41 — application No 3 564 366

Proprietor of the mark or sign cited in the opposition proceedings: Medion AG

Mark or sign cited: The national and international word marks ‘LIFE’ and ‘LIFETEC’, for goods and services in classes 1, 7, 8, 9, 10, 11, 16, 21, 28, 37, 38, 41 and 42; the national and international word mark ‘LIFESAT’ for goods in Class 9 and the national word mark ‘Lifesign’ for goods in Classes 9, 14 and 16

Decision of the Opposition Division: Rejected the application for registration partially

Decision of the Board of Appeal: Upheld the opposition and dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94.
EN Official Journal of the European Union C 64/44

Action brought on 21 December 2007 — Insight Direct USA v OHIM — Net Insight (Insight)

(Case T-489/07)

(2008/C 64/74)

Language in which the application was lodged: English

Parties

Applicant: Insight Direct USA, Inc. (Tempe, United States) (represented by: M. Gilbert and M. Moore, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Net Insight AB (Stockholm, Sweden)

Form of order sought

— The decision of the Second Board of Appeal dated 20 September 2007 in Case R 1428/2006-2 shall be annulled and the rejection of the application for all services in classes 37 and 42 and the rejected services in class 35 be overturned and the application be allowed to proceed in respect of all of the services for which the application was published.

— The Office and other parties shall bear their own costs and pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘Insight’ for services in classes 35, 36, 37 and 42 — application No 3 309 002

Proprietor of the mark or sign cited in the opposition proceedings: Net Insight AB

Mark or sign cited: The Community and national word mark ‘NET INSIGHT’ for goods and services in classes 9, 37 and 41

Decision of the Opposition Division: Opposition partially upheld and partially rejected

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: According to the applicant, the Board of Appeal wrongly identified the dominant and distinctive elements of the earlier mark and did not give consideration to all the relevant factors in assessing the similarity of the relevant goods and services. Furthermore, the Board of Appeal failed to consider all the relevant factors in relation to the global appreciation test when determining the likelihood of confusion between the conflicting marks.