1.11.2003 EN C 264/29 Official Journal of the European Union
Pleas in law and main arguments
Applicant for Com- The applicant.
munity trade mark:
Community trade mark Figurative colour mark ‘GLOVE’
sought: — Application No 464016 for a
range of goods and services inClasses 25, 35 and 41.
Proprietor of mark or RCN-Companhia de importaçao e
sign cited in the oppo- esportaçao de Texteis, Lda.
sition proceedings:
Mark or sign cited in the Spanish (registration
opposition: No 1.629.840) and international
(registration No 651.424) figurat-ive trade mark ‘GLOIBE’ and por-
tuguese (registration No 310.796)
and spanish (registrationNo 1.981.850) word trade mark‘GLOBE’ for goods in Class 25
(clothing, footwear and belts).
Decision of the Oppo- Refusal of the application for
sition Division: goods in class 25 (namely cloth-
ing, footwear and belts) andadmission of the Community tra-de mark application for the
remaining services in Classes 35
and 41.
Decision of the Board of Rejection of the appeal.
Appeal:
Pleas in law: Incorrect application of
Article 8(1) of Regulation (EC)No 40/94 (Absence of confusion,
lack of any risk of association and
slight similarity of the products).
Action brought on 30 July 2003 by Deutsche Telekom AGagainst the Commission of the European Communities
(Case T-271/03)
(2003/C 264/51)
(Language of the case: German)
An Action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 July 2003 by Deutsche TelekomAG, Bonn (Germany), represented by K. Quack, U. Quack andS. Ohlhoff, lawyers.The applicant claims that the Court should:
— annul the defendant’s decision of 21 May 2003, published
under Case No C(2003)1536 final;
— in the alternative, reduce the fine imposed in Article 3 of
the decision at the Court’s discretion;
— order the defendant to pay the costs, including pre-
litigation costs.
Pleas in law and main arguments
By the contested decision the Commission decided that the
applicant had infringed Article 82a of the EC Treaty by
charging its competitors and final customers excessive monthly
and flat-rate fees for access to its fixed network, therebyimpeding competition for access to the network on the market.The applicant was fined EUR 12,6 million.
The applicant claims that the Commission infringed Article 82
EC on the basis that it could not be accused of anti-competitiveconduct because the amount of the contested fees could not
be excessive since there was no restriction of competition.
Contrary to the Commission’s view, the cost/price discrepancyaccording to the method it used is neither appropriate norsufficient to support a finding that the applicant’s advance and
final-customer fees were anti-competitive. The Commission’s
analysis of the cost/price discrepancy was misconceived in itsmethods and there was no restriction of competition.
The applicant also claims that the Commission exceeded its
discretion in adopting the contested decision. By its decisionthe Commission is impinging on the competencies conferred
by Community law on the German regulatory authority for
post and telecommunications and attempting to correct theway in which the contested fees are regulated. For the samereason the decision is disproportionate. Its effect is to subject
the applicant’s fees for access to the network to twofold
regulation and it therefore undermines the legal certaintyintended to be created by the allocation of competenceestablished by Community law in respect of fees in the
telecommunications sector.
Finally, by imposing a fine on the applicant, the defendant
infringed essential procedural requirements and Article 15(2)
of Regulation No 17/62.