Case T-107/02: Action brought on 5 April 2002 by BetzDearborn, Inc. against the Office for Harmonisation in the Internal Market
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), plastics industry

13.7.2002

EN

Official Journal of the European Communities

C 169/33

2.

That suspension is subject to the following conditions: first, the
applicant shall
lodge at the Registry of the Court of First
Instance and at the Commission, by 5 August 2002, an
interim report on its financial situation to 1 July 2002; second,
the applicant shall repay to the BvS a first instalment of the
contested aid in the sum of 256 000 euros by 31 December
2002 and shall lodge at the Registry of the Court of First
Instance and at the Commission, within one week of making
the payment, written proof of the said part repayment of the
contested aid; third, the applicant shall lodge at the Registry of
the Court of First
the Commission, by
Instance and at
31 January 2003, a report on its financial situation to
31 December 2002.

The applicant claims that the conduct of the Parliament is not
covered by the legislation promulgated and that it has been
prompted by considerations which are not germane to the
matter. The Parliament found in 1998 that the applicant had a
residence in Germany, and the applicant sent, together with
the annual declaration, a confirmation of registration issued
by the local authority for his place of residence. He claims to
have proved to the administration that he has only one
German residence and a corresponding centre of vital interests,
and that there is thus no valid reason entitling the adminis-
tration to demand further proof. The administrative practice
of the Parliament is neither lawful nor reasonable; moreover,
it does not accord with the duties of mutual cooperation.

3.

Costs are reserved.

Action brought on 18 March 2002 by Wolf-Dieter Graf
Yorck von Wartenburg against the European Parliament
and the Commission of the European Communities

(Case T-82/02)

(2002/C 169/59)

(Language of the case: German)

Action brought on 5 April 2002 by BetzDearborn, Inc.
against the Office for Harmonisation in the Internal
Market

(Case T-107/02)

(2002/C 169/60)

(Language of the case: English)

An action against the European Parliament and the Com-
mission of the European Communities was brought before the
Court of First Instance of the European Communities on
18 March 2002 by Wolf-Dieter Graf Yorck von Wartenburg,
of Wittibreut (Germany), represented by H.-H. Heyland, lawyer,
with an address for service in Luxembourg.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 5 April 2002 by BetzDearborn,
Inc., represented by Mr Geert Glas of Allen & Overy, Brussels
(Belgium).

A further party to the proceedings before the Board of appeal
was Atofina Chemicals, Inc.

The applicant claims that the Court should:

The applicant claims that the Court should:

— by way of modification to the European Parliament’s
decision of 28 May 2001, order the appointing authority
to apply to the applicant’s emoluments as a former
servant of the Communities, with effect from December
2000, the weighting for the Federal Republic of Germany,
to pay over the amounts not paid since then and to make
corresponding payments in future for as long as the
applicant maintains his residence in Germany.

— annul the Decision of the First Board of Appeal of 17
January 2002 in case R 1003/2000-1 to the extent that
it annuls the Decision nr 2004/2000 of the Opposition
Division of 7 September 2000; remit the case to the
Opposition Division for further prosecution; order each
party to bear their own costs incurred in connection with
the appeal;

— order the Office to pay all costs.

Pleas in law and main arguments

The applicant, a former member of the temporary staff of the
European Parliament who has been retired since 1998,
is
contesting the Parliament’s decision not to apply any weighting
to the applicant’s retirement pension since 1 December 2001
in the absence of proof that he actually resides in Germany.

Pleas in law and main arguments

Applicant for the Com-
munity trade mark:

BetzDearborn, Inc.

The Community trade
mark concerned:

The word mark ‘BIOMATE’ for
certain goods in class 1

C 169/34

EN

Official Journal of the European Communities

13.7.2002

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

Elf Atochem North America, Inc.
now called Atofina Chemicals Inc.

The applicant claims that the Court should:

— annul or, alternatively, substantially reduce the fine
imposed on the applicant pursuant
to Commission
Decision C(2001)4573 final corr. of 20 December 2001
relating to a proceeding pursuant to Article 81 of the EC
Treaty and Article 53 of the EEA Agreement (Case COMP/
E-1/36.212 — Carbonless paper);

— order the Commission to pay the applicant’s legal and
other costs and expenses in relation to this matter.

Trade mark or
sign
asserted by way of oppo-
sition in the opposition
proceedings:

The national and international
figurative marks ‘Biomet’ and the
national word mark ‘Biomet’ for
certain goods in classes 1 and 5

Decision of the Oppo-
sition Division:

Rejection of
Atofina Chemicals Inc.

the opposition of

Decision of the Board of
Appeal:

Partial annulment of the Oppo-
sition Division’s decision.

Pleas in law and main arguments

Grounds of claim:

Violation of Article 17(2) of Com-
mission
2868/
Regulation
95 (1)since a translation into the
language of the procedure of the
evidence submitted was not filed
in due time.

(1) Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark (OJ L 303 of 15.12.1995, p. 1).

Action brought on 16 April 2002 by Arjo Wiggins
Appleton Limited against the Commission of the Euro-
pean Communities

(Case T-118/02)

(2002/C 169/61)

(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 16 April 2002 by Arjo Wiggins
Appleton Limited, represented by Mr François Brunet, Mr John
Temple Lang and Mr Jacob Grierson of Cleary, Gottlieb, Steen
& Hamilton, Paris (France).

In the contested Decision, the Commission found that the
applicant and ten other manufacturers of carbonless paper had
infringed Article 81(1) of the EC Treaty and Article 53(1) of
the EEA Agreement by participating in a complex of agree-
ments and concerted practices by which they fixed price
increases, allocated sales quotas and fixed market shares and
set up machinery to monitor the implementation of the
restrictive agreements.

The applicant submits that the Commission erred in respect of
each of the stages of its calculation of the applicant’s fine:

— it imposed an amount for ‘gravity’ (EUR 70 million) that

was disproportionately high;

— it increased this amount by 100 % for ‘deterrence’ for no

good reason;

— it imposed a further increase of 50 % for ‘leadership’
which was entirely disproportionate to the role played by
the applicant; and

— it granted an insufficient reduction for cooperation.

In addition, the applicant alleges that the Commission failed
to take account of the economic difficulties of the carbonless
paper market as an attenuating circumstance to reduce the
level of the fine; it breached the applicant’s rights of defence;
and it made a series of mistakes of a kind that it ought not to
have made in a decision imposing a EUR 185 million fine.

The applicant submits that the combination of these errors
resulted in almost 60 % of the total of the fines handed down
being imposed on the applicant alone, which is clearly out of
proportion to the applicant’s market share.