Case T-115/02: Action brought on 12 April 2002 by Avex Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade mark, trade-mark law

C 144/58

EN

Official Journal of the European Communities

15.6.2002

market and with the EEA Agreement, subject to compliance
with the undertakings given. The applicant is challenging that
decision.

was likely to strengthen even further SEB’s position on the
relevant markets.

(1) Commission Notice on remedies acceptable under Council Regu-
lation (EEC) No 4064/89 and under Commission Regulation (EC)
No 447/98 (text with EEA relevance) (OJ 2001 C 68, p. 3).

In support of its application the applicant relies first of all
on an infringement of essential procedural requirements in
accepting the undertakings proposed by SEB late. Undertakings
must be submitted within three weeks from notification of a
transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was
notified. The applicant claims that those undertakings could in
no circumstances be regarded as enhancing the original
undertakings but constituted new undertakings.

Secondly, the applicant claims that the Commission erred in
law in deciding to authorise the operation without carrying
out an in-depth investigation. The applicant claims that the
conditions for authorisation in phase one were not met. The
undertakings proposed did not definitively resolve any serious
doubts as to the compatibility of the transaction with the
common market, as required by the Commission Notice on
remedies (1).

Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed
on SEB are insufficient to remove the competition concerns.
The Commission therefore authorised the transaction without
any undertakings on certain markets where there were serious
competition concerns. Moreover, an undertaking to grant a
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect
of strengthening SEB/Moulinex’s position on that market.
Finally, the fact that the Commission agreed to the same trade
mark being used by different companies within the European
Union is liable to lead to coordinated behaviour by SEB/
Moulinex and the licensees.

Action brought on 12 April 2002 by Avex Inc. against the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case T-115/02)

(2002/C 144/113)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
12 April 2002 by Avex Inc., Tokyo (Japan), represented by
J. Hofmann, lawyer. Adolf Ahlers AG, Herford (Germany) was
an additional party to the proceedings before the Board of
Appeal.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market of
11 February 2002 (Case No R 634/2001-1) on the
registration of the word/figurative sign ‘a’ as a Community
trade mark;

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant seeking Com-
munity trade mark:

Avex Inc.

Community trade mark
sought:

The figurative mark ‘a’ for goods
in Classes 9, 16, 25, 35 and 41
(inter alia, clothing, shoe-related
items, shoes and boots) — appli-
cation no 863142

Fourthly, the applicant considers that the Commission erred
in law by failing to examine the extent to which the derisory
sum paid and the financial aid provided by the French State

Proprietor of mark or
sign right cited in the
opposition proceedings:

Adolf Ahlers AG

15.6.2002

EN

Official Journal of the European Communities

C 144/59

Mark or sign right cited
in opposition:

The German national
figurative
marks ‘a’ for goods in Class 25
(inter alia, clothing)

Decision of Opposition
Division:

Refusal of application for regis-
tration of mark

but was mislaid within the Commission’s services. The appli-
cant was thus unable properly to discharge his financial
obligations and was required to pay a penalty. As the
administrative fault on the Commission’s part is proved, the
applicant is entitled to compensation for the pecuniary and
non-pecuniary harm sustained.

Decision of Board of
Appeal:

Pleas in law:

Annulment of the decision of the
Opposition Division with respect
to goods in Classes 9, 16, 35 and
41; affirmation of the decision
with respect to goods in Class 25

— No similarity with the rel-
evant goods in Class 25

— Significant difference from

the figurative marks

Action brought on 11 April 2002 by San Paolo S.r.l.
against the Commission of the European Communities

(Case T-121/02)

(2002/C 144/115)

Action brought on 16 April 2002 by Antonio Aresu
against Commission of the European Communities

(Language of the case: Italian)

(Case T-116/02)

(2002/C 144/114)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 11 April 2002 by San Paolo S.r.l.,
represented by Professor Franco Gallo, Gabriele Escalar and
Professor Adriano Rossi, Lawyers.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 April 2002 by Antonio Aresu,
residing in Brussels, represented by Sergio Diana, avocat.

The applicant claims that the Court should:

— order the Commission to make reparation for the pecuni-
ary and non-pecuniary harm sustained by the applicant,
amounting to EUR 353;

— order the Commission to pay the costs.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities of 11 December 2001 no C54/A/2000/EC,
unpublished, declaring incompatible with the internal
market the system of State aid laid down by Italian
legislation in the form of tax advantages for banks and
banking institutions;

— order the Commission to pay the costs of the proceedings

and all consequential costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant is an official of the Commission and at the
material time was on temporary secondment to the Court of
Justice.

The main arguments are similar to those put forward in Case
T-36/02 ABI v Commission (1).

In support of his claim for damages, the applicant alleges that
the Commission’s mail service received a letter from an Italian
professional body addressed to the applicant and containing a
demand for payment. The letter did not reach the applicant

(1) OJ C 97 of 20.4.2002, p. 14.