Case T-114/02: Action brought on 15 April 2002 by BaByliss SA against the Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fish, fishing area, fishing regulations, stock

C 144/56

EN

Official Journal of the European Communities

15.6.2002

Action brought on 6 April 2002 by Matratzen Concord
GmbH against Office for Harmonisation in the Internal
Market (Trade marks and designs)

Decision of the Oppo-
sition Division:

(Case T-105/02)

Decision of the Board of
Appeal:

(2002/C 144/110)

Grounds of claim:

Rejection of the application for
goods in classes 20 and 24, rejec-
tion of the opposition as regards
goods in class 10

Dismissal of the applicant’s appeal

— No likelihood of confusion
under Article 8 of Regulation
(EC) No 40/94 (1);

— No similarity between the

opposing marks;

— Incorrect division of the tra-
de mark into its individual
components;

— Failure to follow the case-
law of the Court of Justice
overall
concerning
trade
impression of
mark;

the

the

— Right of a competitor in the
market to combine the desig-
nation of his main products
with the name of his firm;

— Opposing mark not capable

of protection.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 15 April 2002 by BaByliss SA against
the Commission of the European Communities

(Case T-114/02)

(2002/C 144/111)

(Language of the Case: French)

the

(Language of
case to be determined in accordance with
Article 131(2) of the Rules of Procedure — Language in which the
application was drafted: 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
6 April 2002 by Matratzen Concord GmbH, of Cologne
(Germany), represented by W.-W. Wodrich, lawyer, with an
address for service in Luxembourg. The other party before the
Board of Appeal was Hukla Germany, S.A., of Castellbisbal
(Spain).

The applicant claims that the Court should:

— Set aside the decision of the defendant (Second Board of
Appeal) of 25 January 2002 (reference of the appeal R
1045/2000-2);

— Dismiss the opposition of the opponent of 17 December

1998 (reference B 115 057);

— Order the defendant and the opponent to pay all the
costs of the procedure before the Opposition Division
and the Board of Appeal and of the present proceedings.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

The applicant

trade

mark
Figurative
‘MATRATZEN CONCORD’
for
goods in classes 10, 20 and 24 —
Application No 739722

Hukla Germany, S.A.

Community trade mark
applied for:

Proprietor of the right to
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:

sign
Trade mark or
asserted by way of oppo-
sition:

Spanish word
‘MATRATZEN’
class 20

trade mark
in
goods

for

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 April 2002 by BaByliss SA, of
Montrouge (France), represented by Jacques-Philippe Gunther,
lawyer.

The applicant claims that the Court should:

— annul

the decision adopted by the Commission on
8 January 2002 in the case of COMP/M.2621 SEB v
MOULINEX;

— order the Commission to pay all the costs.

15.6.2002

EN

Official Journal of the European Communities

C 144/57

Pleas in law and main arguments

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

SEB and Moulinex are active in the design, manufacture and
sale of domestic electric appliances worldwide. A proposed
merger of the two companies was notified to the Commission.
The applicant in this case informed the Commission of its
reservations in regard to the merger. The Commission none
the less declared the transaction compatible with the common
market and with the EEA Agreement, subject to compliance
with the undertakings given. The applicant is challenging that
decision. 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. Undertak-
ings 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.

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 15 April 2002 by BaByliss SA against
the Commission of the European Communities

(Case T-114/02)

(2002/C 144/112)

(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 15 April 2002 by BaByliss SA, of
Montrouge (France), represented by Jacques-Philippe Gunther,
lawyer.

The applicant claims that the Court should:

— annul

the decision adopted by the Commission on
8 January 2002 in the case of COMP/M.2621 SEB v
MOULINEX;

— order the Commission to pay all the costs.

Pleas in law and main arguments

SEB and Moulinex are active in the design, manufacture and
sale of domestic electric appliances worldwide. A proposed
merger of the two companies was notified to the Commission.
The applicant in this case informed the Commission of its
reservations in regard to the merger. The Commission none
the less declared the transaction compatible with the common