Case T-237/01: Action brought on 18 September 2001 by Alcon Universal Ltd against the Office for Harmonisation in the Internal Market
Date: 2001-12-22
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), pharmaceutical industry, trade-mark law

22.12.2001

EN

Official Journal of the European Communities

C 369/13

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

Pleas in law and main arguments

of 9 August 2001

in Case T-120/01 R: Carlo De Nicola v European Invest-
ment Bank

(Procedure for interim relief — Suspension from duties —
Fumus boni juris — Urgency — None)

The pleas in law and main arguments are the same as those
in Case T-216/01 (ReiseBank AG v Commission, not yet
published).

(2001/C 369/20)

(Language of the case: Italian)

Action brought on 18 September 2001 by Alcon Univer-
sal Ltd against the Office for Harmonisation in the Internal
Market

In Case T-120/01 R: Carlo De Nicola, residing in Rome,
represented by L. Isola, avocat, against European Investment
Bank (Agents: C. Go´ mez de la Cruz and C. Camilli) —
application for suspension of the operation of a number of
measures adopted by the EIB concerning the applicant — the
President of the Court of First Instance has made an order on
9 August 2001, in which he:

1. Dismissed the application for interim relief;

2. Ordered that the costs be reserved.

Action brought on 24 September 2001 by the Commerz-
bank AG against the Commission of the European Com-
munities

(Case T-219/01)

(2001/C 369/21)

(Language of the case: German)

(Case T-237/01)

(2001/C 369/22)

(Language of the case: English)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 18 September 2001 by Alcon
Universal Ltd, represented by Hamish Porter of Theodore
Goddard, London (United Kingdom).

A further party to the proceedings before the Board of Appeal
was Dr. Robert Winzer Pharma GmbH.

The applicant claims that the Court should:

— .annul the decision of 18 July 2001 of the Board of
Appeal in case R0273/2000-1 and require the Office to
refuse the cancellation of the Community trade mark.

— order the Office to pay the costs.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 24 September 2001 by Commerz-
bank AG, Frankfurt am Main (Germany), represented by
H. Satzky and B. Maassen, Rechtsanwälte.

Pleas in law and main arguments

Proprietor of the Com-
munity trade mark:

Alcon Universal Ltd.

The applicant claims that the Court should:

— annul the Commission Decision of 17 August 2001 in
Case COMP/E-1/37.919 addressed to the applicant relat-
ing to the refusal of a supplementary request to see
documents;

— order the Commission to pay the costs.

The Community trade
mark concerned:

word mark ‘BSS’ for certain goods
in class 5 (registration no 90134)

Applicant for the declar-
ation for invalidity:

Dr Robert Winzer Pharma GmbH.

Decision of the Cancel-
lation Division:

Invalidity of the Community trade
mark

C 369/14

EN

Official Journal of the European Communities

22.12.2001

Decision of the Board of
Appeal:

Grounds of claim:

Dismissal of
duced by Alcon Universal Ltd.

the Appeal

intro-

Failure by the Board of Appeal to
recognise the actions undertaken
by Alcon Universal Ltd. to restrain
the use of the trade mark by other
parties.

— It submits that the Commission has assessed the gravity
of the infringement, as it is required to do so under
Article 12(2) of Council Regulation No 3975/87 (1),
incorrectly and that the categorisation of the infringement
under the Commission Guidelines on Fines (2) as ‘very
serious’
therefore incorrect.
Although the nature of the infringement as ‘market
sharing’ is not disputed the Commission’s assessment of
the actual impact and the geographic scope of that impact
are contested. The Commission’s calculation and use of
the term ‘affected turnover’ is also disputed.

than ‘serious’

rather

is

Action brought on 2 October 2001 by Scandinavia
Airlines System AB against the Commission of the Euro-
pean Communities

(Case T-241/01)

(2001/C 369/23)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 October 2001 by Scandinavian
Airlines System AB, represented by Mr Morten Kofmann of
Kromann Reumert, Copenhagen (Denmark).

The applicant claims that the Court should:

— judicially review the calculation of the fine imposed on

the applicant by the Commission.

Pleas in law and main arguments

The subject of the application is the Commission Decision
C(2001) 1987 final of 18 July 2001, relating to proceedings
pursuant to Article 81 of the EC Treaty ant Article 53 of the
Agreement on the European Economic Area (case COMP.D.2.
37.444 — SAS/Maersk Air and case COMP.D.2 37.386 —
Sun-Air vs. SAS and Maersk Air).
In this Decision the
Commission states that the applicant and Maesk Air A/S have
infringed the competition rules by agreeing to share markets
between them by Maersk Air withdrawing from the Copenha-
gen-Stockholm route and the applicant withdrawing from
the Copenhangen-Venice and Billund-Frankfurt routes, thus
leaving operation exclusively to the other party.

— It argues that the Commission has not proved that the
infringement covered the period from 5 September 1989
until 15 February 2001.

— In relation to co-operation and leniency, it maintains that
a number of factors that should have been taken into
consideration by the Commission have either not been
considered in the Decision or, if they have been con-
sidered, the Commission’s assessment is incorrect.

(1) Council Regulation (EEC) No 3975/87 of 14 December 1987
laying downthe procedure for the application of the rules on
competition to undertaking in the air transport sector (OJ L 374,
p. 1).

(2) 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 C9 1998, p. 3).

Action brought on 15 October 2001 by Pierre Eveillard
against Commission of the European Communities

(Case T-258/01)

(2001/C 369/24)

(Language of the case: French)

The applicant does not object to the Commission’s finding
that it has infringed the competition rules. It merely exercises
its right to subject the Commission’s calculation of the fine to
judicial review.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 October 2001 by Pierre Eveil-
lard, residing in Brussels, represented by Lucas Vogel, lawyer.