Case T-307/02: Action brought on 7 October 2002 by Altana Pharma AG against the Office for Harmonisation in the Internal Market (Trade, Marks and Designs)
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), medicinal product, pharmaceutical product

C 305/26

EN

Official Journal of the European Communities

7.12.2002

Pleas in law and main arguments

The applicant claims that the Court should:

The applicant is contesting Article 3 of the Commission’s
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, in so far as it imposes a fine on
the applicant for infringement of Article 81 EC. The applicant
is contesting only the fine imposed on it, and is not challenging
the facts established or the legal assessment thereof.

The applicant claims that the contested decision is contrary to
Article 15(2) of Regulation No 17 (1) and Article 253 EC. Fines
to be imposed are to be determined by reference to the
seriousness of the infringement and the duration thereof.
According to the applicant, that rule has been applied by the
Commission in an inequitable and unreasonable manner. The
applicant maintains that undertakings which committed the
same infringement over the same period should be required,
under the terms of the decision, to pay a much smaller fine.

Furthermore, according to the applicant, the Commission, in
choosing the addressees of the decision, the turnover attribu-
table to each of those addressees and the order to be applied
to the restriction of the fine to 10 % of turnover and the
leniency rule, adopted a decision which cannot be objectively
justified and which does not justify the considerable differences
in the amounts of the fines imposed.

The applicant also pleads infringement of the Community
principles of equality and proportionality and of the prohib-
ition precluding arbitrariness. According to the applicant,
undertakings involved in a similar measure have been treated
in an unequal way.

( 1) EEC Council: Regulation No 17: First Regulation implementing
Articles 85 and 86 of the Treaty (OJ, English Special Edition
1959-1962, p. 87).

— annul Decision R 719/2000-4 of the Fourth Board of

Appeal of the OHIM of 12 July 2002;

— order OHIM to pay the costs.

Pleas in law and main arguments

The Community trade
mark concerned:

Goods or service:

The bottle comprises a main sec-
tion with, at its base, a recess, in
the shape of a slightly truncated
cone with,
in its flat section, a
stylised star in relief In the lower
part of the main section, which is
nearly cylindrical from bottom to
top, there is an initial series of
wavy grooves and,
in the top
part, which is of slightly smaller
bobbin-shaped,
diameter
there are spiralling grooves which
form lozenges when seen through
the bottle The upper section,
which is the shape of a slightly
truncated cone, ends in a cylindri-
cal neck with a blue cap — Regis-
tration No 922179

and

(Class 32 of
Water
national classification).

the inter-

Decision of the Board of
Appeal:

Refusal of examiner to register the
mark.

Grounds of claim:

Infringement of Article 7(1)(b)
and (e) of Regulation EEC No 40/
94.

Action brought on 3 October 2002 by Nestlé Waters
France against Office for Harmonization in the Internal
Market (Trade, Marks and Designs) (OHIM)

(Case T-305/02)

(2002/C 305/56)

(Language of the case: French)

Action brought on 7 October 2002 by Altana Pharma AG
against the Office for Harmonisation in the Internal
Market (Trade, Marks and Designs)

(Case T-307/02)

(2002/C 305/57)

(Language of the case to be determined pursuant to Article 131(2)
of the Rules of Procedure — language in which the application was
submitted: German)

An action against Office for Harmonization in the Internal
Market (Trade, Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
3 October 2002 by Nestlé Waters France, whose registered
office is in Issy-les-Moulineaux (France), represented by Alain
Cléry.

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
7 October 2002 by Altana Pharma AG, Konstanz (Germany),
represented by H. Becker, lawyer. N.V. Organon, Oss (Nether-
lands), was an additional party to the proceedings before the
Board of Appeal.

7.12.2002

EN

Official Journal of the European Communities

C 305/27

The applicant claims that the Court should:

Action brought on 7 October 2002 by SGL Carbon AG
against the Commission of the European Communities

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade,
Marks and Designs) of 23 July 2002 (appeal No R 526/
2001-1);

— order the Office for Harmonisation in the Internal Market
to reject opposition
and Designs)

(Trade, Marks
No B 262651 filed by the opponent.

(Case T-308/02)

(2002/C 305/58)

(Language of the case: German)

Pleas in law and main arguments

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 October 2002 by SGL Carbon
AG, Wiesbaden (Germany), represented by M. Klusmann and
F. Wiemer, Rechtsanwälte.

Party applying for regis-
the Com-
tration of
munity trade mark:

The applicant (formerly Byk Guld-
en Lomberg Chemische Fabrik
GmbH)

The applicant claims that the Court should:

Trade mark in respect Word mark ‘XION’ for goods in
Class 5 (Medicines) — Application
of which registration is
No 1207976
sought:

— Annul the decision of 24 July 2002 in so far as it refuses

to facilitate the making of payments;

Proprietor of the trade
mark or sign right relied
on in the opposition
proceedings:

Trade mark or sign right
relied on in the oppo-
sition proceedings:

N.V. Organon

The national and international
word mark ‘XYVION’ for goods in
Class 5 (inter alia, medicines and
pharmaceutical preparations for
human use)

— Annul the decision of 24 July 2002 in so far as it
seeks payment of default interest for the period from
24 October 2001 to the date of receipt of the declaration
of securities at a rate in excess of 6,04 %;

— In the alternative, reduce as appropriate the default

interest laid down in the decision;

— Order the defendant to pay the costs of the proceedings.

Decision of Opposition
Division:

Rejection of opposition

Pleas in law and main arguments

Decision of Board of
Appeal:

The decision of the Opposition
Division was annulled and the
opposition allowed.

Pleas in law:

— Infringement

of
Article 8(1)(b) of Regulation
No 40/94 (1);

— The marks are not so similar
as to create a likelihood of
confusion.

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

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

By a decision of 18 July 2001 the Commission imposed a fine
on the applicant (1). The applicant requested the Commission
in October 2001 to set aside the requirement that securities be
lodged in respect of the fine claim and ancillary demands, and
to facilitate the undertaking in making payments in view of
the difficult economic situation. The Commission turned down
this request in the decision under challenge, whereupon the
applicant lodged the required securities. The Commission is
seeking increased interest of 8,04 % for the period up to the
lodgment of the securities.

The applicant challenges that decision and argues that the
Commission committed errors of
form and judgment in
turning down its request. On formal grounds alone, the
Commission, it claims, failed to provide adequate grounds for
its negative decision. That decision is also substantively
defective in regard to the exercise of judgment as it is not clear
that the Commission properly exercised its discretion.