Case T-399/02: Action brought on 31 December 2002 by Eurocermex S.A. against the Office for Harmonisation in the Internal Market
Date: 2003-02-22
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), beverage industry, clothing, database, information medium, trade mark, trade-mark law

C 44/44

EN

Official Journal of the European Union

22.2.2003

consols and cartridges. The applicant
is alleged to have
participated actively in a distribution agreement which imped-
ed exports and to have provided information to assist with
retracing the origins of parallel
exports. A fine of
EUR 1,5 million was also imposed on the applicant.

Action brought on 31 December 2002 by Eurocermex
S.A. against the Office for Harmonisation in the Internal
Market

The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:

(Case T-399/02)

(2003/C 44/81)

(Language of the case: French)

— Incorrect application of Article 81 EC in so far as concerns
the first distribution agreement concluded between Linea
Gig S.r.l. Nintendo Corporation Ltd. and error in finding
the applicant responsible for the anti-competitive conduct
attributed to the parties involved.

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 31 December 2002 by Eurocermex
S.A., established in Evere, Belgium, represented by André
Bertrand, lawyer.

— Inconsistency within the decision and infringement of
Article 253 EC. It is submitted in this regard that, despite
the fact that relations and dealings between Nintendo and
its retail and wholesale customers and relations and
dealings between John Menzies and its customers were
identical to relations and dealings between Nintendo and
its authorised distributors, the Commission decided to
assess them in different fashions and alleged involvement
in the supposed agreements and concerted practices only
against Nintendo and its national distributors.

The applicant claims that the Court should:

— annul the decision by which the examiner found that the
three-dimensional trade mark at issue was not such as to
constitute a valid trade mark for ‘beers, mineral and
aerated waters and fruit juices’,
‘restaurants, bars and
snack bars’;

— send the case back to the examiner for prosecution;

— order the Office to pay the costs.

concerted

agreements

— Failure to assess the economic context in which the
supposed
practices
and/or
occurred. The applicant says that the Commission failed
properly to define the relevant markets, failed to assess
Nintendo’s position in the relevant markets identified —
instead merely evaluating its market shares in certain
Member States — and failed to assess Nintendo’s market
position in 1990, the year in which the distribution
agreements were concluded, or at all during the period
1992 to 1997, instead arbitrarily choosing certain other
years.

Pleas in law and main arguments:

The trade mark in ques-
tion:

three-dimensional mark
rep-
resenting a ‘long neck’ bottle on
the neck of which a piece of
lemon has been plugged, claiming
the colours yellow and green.

Goods or services con-
cerned:

goods
and 42.

in Classes 16, 25, 32

— Infringement of Article 15(2) of Regulation EEC No 17/
62 and breach of the principles of equality and pro-
portionality in the Commission’s assessment of
the
intention behind the applicant’s conduct and its fixing of
the amount of the fine, in that it set the fine higher than
the maximum permissible sum, selected the wrong
basic amount and failed to take account of mitigating
circumstances.

contested
Decision
before grant of
regis-
tration as regards Class-
es 16 and the Board of
Appeal:

Grounds pleaded:

25 and refusal as regards Class-
es 32 and 42.

Infringement of Article 7(1)(b)
and (3) of Regulation (EC) No 40/
94.