Case T-12/03: Action brought on 16 January 2003 by Itochu Corporation against the Commission of the European Communities
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), automatic game, equal treatment, exclusive distribution agreement

8.3.2003

EN

Official Journal of the European Union

C 55/41

Pleas in law and main arguments

Pleas in law and main arguments

for

regis-
Applicant
tration of a Community
trade mark:

Community mark con-
cerned:

Jean-Pierre Koubi

The word mark ‘conforflex’ for
certain products in Class 20 (bed-
room furniture) (No 1171172).

forward as
refusal
for
the opposition

Marks put
grounds
under
procedure

The national marks ‘flex’ and ‘flex’
for certain products in Class 20
(including beds, mattresses and
pillows, bedding articles).

Owner of the marks put
forward as grounds for
refusal

Decision of the Oppo-
sition Division:

Decision of the Board of
Appeal:

Pleas in law:

Fabricas Lucia Antonio Betere,
S.A.

Dismissal of the opposition.

Annulment of the decision of the
Opposition Division and rejection
of the application for registration
of the Community mark.

Infringement of the concept of
risk of confusion.

Action brought on 16 January 2003 by Itochu Corpor-
ation against the Commission of the European Communi-
ties

(Case T-12/03)

(2003/C 55/97)

(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 January 2003 by Itochu Corpor-
ation, Tokyo, Japan, represented by Mr Gerwin Van Gerven
and Mr Thomas Franchoo, Lawyers.

The applicant claims that the Court should:

— annul Articles 1, 3 and 5 of Commission decision
C(2002) 4072 final of 30 October 2002 in Cases
COMP/35.587 PO Video games, COMP/35.706 Nintendo
Distribution and COMP/36.321 Omega-Nintendo, inso-
far as it finds an infringement on Article 81 (1) of the EC
Treaty, imposes a fine upon and addresses the decision to
the applicant, or alternatively, to substantially reduce that
fine;

— order the Commission to pay the costs.

The applicant is a major general trading company in Japan.
Itochu Hellas, a local subsidiary of Itochu Europe and only
indirectly a subsidiary of the applicant, concluded a distri-
bution agreement with Nintendo. The applicant indicates that
the distribution and sale of game consoles was never one of its
core activities and that such activities were at the sole discretion
of local subsidiaries, who operate with a large degree of
independence.

In support of its application, the applicant claims that it cannot
be held liable for an alleged infringement of Article 81 (1) of
the EC Treaty on behalf of Itochu Hellas and, therefore, that it
is not the correct addressee of the contested decision. Accord-
ing to the applicant, the Commission should prove that a
mother company exerted decisive influence over its subsidiary
in order to hold the former liable for the acts of the subsidiary.

The applicant claims furthermore that the fine should be
annulled or substantially reduced. The applicant invokes a lack
of proper reasoning and an infringement of the principle of
proportionality and equal treatment. The applicant claims that
the Commission treated the applicant in the same way as other
undertakings without enabling the applicant to assess the
figures on which the Commission relied.

The applicant submits that the Commission had no grounds
to increase the fine to ensure deterrence considering that
Itochu Hellas should have been the addressee of the decision.
The applicant also claims that an increase for deterrence on
account of the applicant’s size and resources constitutes an
infringement of the principles of proportionality and equal
treatment.

Moreover, the applicant invokes a manifest error of assessment
and a violation of the principle of proportionality insofar as
the fine was increased to take into account the duration of the
alleged infringement. The applicant also submits that the
Commission should have applied a smaller increase by percent-
age on account of duration as Itochu Hellas’ participation was
only passive.

The applicant also puts forward that the Commission has
infringed Article 253 of the EC Treaty and the principle of
proportionality because it has refused to consider certain
attenuating circumstances, like the very limited and exclusively
passive role of Itochu Hellas and the fact that Itochu Hellas did
not implement the restrictive practices. Furthermore, according
to the applicant, the Commission has violated the principle of
equal treatment by accepting attenuating circumstances in
favour of other addressees and not for the applicant.

The applicant finally invokes a violation of Article 15 (2) of
Regulation 17 (1) insofar as the Commission imposed a fine
that exceeds 10 % of Itochu Hellas’ turnover in the preceding
business year and a violation of its rights of defence insofar

C 55/42

EN

Official Journal of the European Union

8.3.2003

as the Commission changed the legal assessment of the
infringements without offering the applicant the possibility of
responding to it during the administrative proceedings.

Removal from the register of Joined Cases T-100/02 and
T-102/02 (1)

( 1) EEC Council: Regulation No 17: First Regulation implementing
Articles 85 and 86 of the Treaty (OJ 13 of 21.2.1962, p. 204).

(2003/C 55/100)

(Language of the Case: English)

By order of 2 December 2002 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Joined
Cases T-100/02 and T-102/02: EVC International N.V. v
Commission of the European Communities.

(1) OJ C 156 of 29.06.2002.

Removal from the register of Case T-96/01 (1)

(2003/C 55/98)

(Language of the Case: Greek)

By order of 13 December 2002 the President of the Second
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-96/01: Rodolfos Maslias v European Parliament.

Removal from the register of Case T-170/02 (1)

(2003/C 55/101)

(Language of the Case: French)

( 1) OJ C 200 of 14.07.2001.

Removal from the register of Joined Cases T-99/02 and
T-101/02 (1)

(2003/C 55/99)

(Language of the Case: English)

By order of 2 December 2002 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Joined
Cases T-99/02 and T-101/02: Ineos N.V. v Commission of the
European Communities.

( 1) OJ C 156 of 29.06.2002.

By order of 6 December 2002 the President of the Second
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-170/02: Maria Rosaria Ragazzini v European Parliament.

(1) OJ C 202 of 24.08.2002.

Removal from the register of Case T-295/02 (1).

(2003/C 55/102)

(Language of the Case: Dutch)

By order of 13 December 2002 the President of the Third
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-295/02: Koninklijke BAM NBM N.V. v Commission of the
European Communities.

(1) OJ C 289 of 23.11.2002.