Case T-53/03: Action brought on 14 February 2003 by BPB plc against the Commission of the European Communities
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), building industry, equal treatment, exchange of information, fine, plaster

26.4.2003

EN

Official Journal of the European Union

C 101/45

Action brought on 11 February 2003 by Pi-Design AG
against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

— There is no basis for stating
that the cafetière in question
is a manifestation of the ‘usu-
al shape of the product’.

(Case T-51/03)

(2003/C 101/79)

(Language of the case: Danish)

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

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

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
11 February 2003 by Pi-Design AG, Triengen (Switzerland),
represented by Jacob S Ørndrup, lawyer

Action brought on 14 February 2003 by BPB plc against
the Commission of the European Communities

(Case T-53/03)

(2003/C 101/80)

The applicant claims that the Court should:

(Language of the case: English)

— annul the decision of the defendant of 5 December 2002
in Case No R452/2001-2 concerning EC trade mark
application No 000353854;

— order the defendant to pay the costs.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 February 2003 by BPB plc,
Slough, United Kingdom, represented by Thomas Sharpe QC
and Mr Alexandre Nourry, Solicitor with an address for service
in Luxembourg.

Pleas in law and main arguments

The applicant claims that the Court should:

Community trade mark
sought:

A three-dimensional trade mark
in the form of a ‘cafetière’ (push-
down coffee pot) — application
No 353854

Goods or services:

Nice classification 21 (non-elec-
tric coffee makers)

Decision
Board of Appeal:

before

the

Refusal of
examiner

registration by the

Decision of Board of
Appeal:

Dismissal of appeal

— Annul Articles 1 and 2 of the contested Decision insofar

as it relates to BPB

— In the alternative, annul Article 3 of the Decision insofar
as it relates to BPB or, in the further alternative, reduce
the fine imposed on BPB to such amount as the Court
determines in accordance with law

— Subject to the annulment of Article 3 of the Decision or
the reduction in the fine, order repayment of the principal
sum paid by BPB together with such interest as the Court
should determine in accordance with law

— Order the Commission to pay BPB’s costs.

Pleas in law:

— The defendant’s decision is
contrary to Article 7(1)(b) of
Regulation No 40/94 (1):

Pleas in law and main arguments

— The trade mark has

the
distinctive

necessary
character.

— The fact that the plaintiff’s
cafetière design is copied
should not in itself lead to
the trade mark application’s
being refused on grounds of
lack of distinctive character.

By its decision which forms the subject matter of the present
the defendant found that the applicant and three
action,
other undertakings, namely Gebrüder Knauf Westdeutsche
Gipswerke KG, Société Lafarge SA and Gyproc Benelux, had
infringed Article 81 paragraph 1 EC by participating in a
complex and continuing agreement from 1992 until 1998
with the object of stabilising the principal EU markets in
plasterboard. The applicant denies that any agreement of the
type alleged existed.

C 101/46

EN

Official Journal of the European Union

26.4.2003

In support of
following contentions:

its application the applicant submits the

Action brought on 14 February 2003 by Lafarge SA
against Commission of the European Communities

— the defendant violated the rights of the defence and the
principle of equality of arms. More specifically,
the
applicant alleges that the defendant used information
obtained from a third party as well as information
contained in the replies of the other parties to the
defendant, and that all of that information was not
revealed to the applicant.

— the evidence advanced by the defendant does not substan-
tiate its claims and the defendant has failed to meet the
high standard of proof which the applicant considers is
required in such proceedings.

— the defendant made manifest errors in its assessment of
to an incorrect decision and

leading it

information,
misuse of its powers.

— the defendant violated Article 253, EC, in that it failed to
provide sufficient or adequate reasons for its decision

The applicant further contends that in setting the fine the
defendant misapplied its powers under Article 15, paragraph 2,
of Regulation 17/62 and its own Guidelines on setting
fines, violated the principles of Community law and acted
unreasonably. In particular, the applicant contends that:

— the basic amounts of the fine imposed for gravity and
duration are disproportionate, arbitrary, and contrary to
the principles of proportionality and equal treatment

— the 50 % uplift for aggravating circumstances is excessive
and disproportionate and offends the principle of equal
treatment

(Case T-54/03)

(2003/C 101/81)

(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 14 February 2003 by Lafarge SA,
established in Paris, represented by Henry Lesguillons, Nathalie
Jalbert-Doury, Jean-Cyril Bermond, Antoine Winckler, François
Brunet and Igor Simic, lawyers.

The applicant claims that the Court should:

— annul the decision adopted by the Commission of the
European Communities on 27 November 2002 in Case
COMP/E-1/37.152 in so far as it concerns Lafarge SA and
Lafarge Gypsum International SA;

— in the alternative, annul or reduce the amount of the fine

imposed on it by that decision;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

The decision which is the subject of the present application
concerns an agreement or arrangement between BPB, Gebruder
Knauf Westdeutsche Gipswerke AG, Gyproc Benelux and the
applicant on the plasterboard market.

its claims,

the applicant alleges that

the
In support of
Commission infringed Article 81 of
the EC Treaty and
committed manifest errors of assessment inasmuch as the
decision finds that Lafarge SA committed a single complex
continuous infringement, which the applicant denies.

— the defendant failed to take account of any attenuating

The applicant also takes the view that:

circumstances

— the defendant erred in its application of its Leniency
Notice in violation of the principles of equal treatment
and legitimate expectation

— the defendant infringed its right to a fair hearing guaran-

teed under Article 6 of the ECHR;

— the defendant infringed essential procedural requirements
and rights of the defence. In that respect, the applicant
claims that the defendant used statements from the parties
made during the procedure and that the proceedings were
vitiated by constant infringements of the principle of
equality of arms;

— the defendant infringed the principle of impartiality.