Case T-211/03: Action brought on 13 June 2003 by Faber Chimica S.r.l. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-08-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), adhesive, chemical product, trade-mark law

23.8.2003

EN

Official Journal of the European Union

C 200/27

Pleas in law and main arguments

The applicant was an official at
the Commission. By the
decision challenged the Commission reprimanded the applicant
following alleged false statements made by the him in connec-
tion with his missions and leave.

The applicant pleads, first, infringement of Commission Regu-
lation No 1 and Article 13 of the EC Treaty. He states that the
defendant continued to use French in its letters to him in spite
of his request
to use Danish or English. That constitutes,
according to the applicant, language discrimination.

Secondly, the applicant pleads breach of medical confidentiality
to
in so far as the defendant consulted its medical staff
ascertain whether the applicant was fit to attend the hearing.
That opinion can be based, according to the applicant, only on
his medical history and his file and therefore constitutes a
breach of professional secrecy.

Thirdly, the applicant pleads irregularities in the procedure in
so far as the complaints were not clearly formulated in the
minutes recording the opening of the disciplinary proceedings.
The applicant also pleads an infringement of rules of law, in
particular of Article 71 and Annex VII of the Staff Regulations.

In support of

lished for the sale outside the United States of spare parts for
its construction equipment infringed Articles 81 and 82 EC.
The Commission rejected that complaint by its contested
decision.
its action, the applicant claims that
the defendant made manifest errors of fact, as well as errors in
in finding that
the interpretation and application of the law,
the application to the applicant of the system of selling spare
parts for use outside the United States does not constitute an
agreement within the meaning of Article 81 EC and by not
applying Article 82 EC although Caterpillar holds a dominant
position in the relevant market. The applicant also puts
forward alleged infringements of procedural rules and of the
complainant's rights in regard to the allegedly excessive length
of the investigation of the complaint lodged by the applicant,
the alleged failure to give reasons for the contested decision,
the alleged lack of diligence and impartiality of the defendant
in the examination of the complaint, as well as the alleged
infringement of Article 6 of Regulation 2842/1998/EC (1)
in
that new matters appear for the first time in the contested
decision without the applicant being able to submit its obser-
vations with regard thereto.

(1) OJ 1998 L 354 p. 18.

Action brought on 10 June 2003 by Haladjian Frères
against the Commission of the European Communities

(Case T-204/03)

(2003/C 200/49)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 10 June 2003 by Haladjian Frères,
established in Sorgues (France), represented by Nicole Coutrelis,
lawyer, which an address for service in Luxembourg.

The applicant claims that the Court should:

— annul

the Commission's decision of 1 April 2003

rejecting its complaint against Caterpillar;

— so far as necessary, undertake all measures of inquiry to
the documents

the Commission to produce all
order
relevant to determination of the dispute;

— order the Commission to pay the costs.

Action brought on 13 June 2003 by Faber Chimica S.r.l.
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

(Case T-211/03)

(2003/C 200/50)

(Language of the case: Italian)

An action against the Office for Harmonisation in the Internal
(Trade Marks and Designs) was brought before the
Market
the European Communities on
Court of First
Instance of
represented by
13 June 2003 by Faber Chimica S.r.l.,
P. Tartuferi and M. Andreano. Industrias Químicas Naber S.A.
was also a party to the proceedings before the Board of
Appeal.

The applicant claims that the Court should:

— annul the contested decision;

Pleas in law and main arguments

The applicant lodged a complaint with the Commission against
the Caterpillar Corporation, claiming that the system it estab-

— order OHIM and also Industrias Químicas Naber S.A., in
the event that it should intervene, to pay the costs of the
present proceedings together with the costs of the admin-
istrative proceedings before OHIM.

C 200/28

EN

Official Journal of the European Union

23.8.2003

Pleas in law and main arguments

Applicant
trade mark:

for Community

The applicant

Community
sought:

trade mark

Figurative mark ‘FABER’ Appli-
cation No 676.353 sought
for
products 1, 2 and 3 (chemicals
and industrial adhesives)

Proprietor of mark or sign
cited in the opposition pro-
ceedings:

Industrias Químicas NABER
S.A.

Mark or sign cited in op-
position:

Nos

Spanish trade marks
(registration
2.072.120,
2.072.122)
classes 1, 2 and 3

for

‘NABER’
801.202,
2.072.121,
in

products

Decision of the Opposition
Division:

Rejection of the opposition

Decision of
Appeal:

the Board of

Dismissal of the appeal

Grounds of the application: Wrongful

application

of
Article 8(1)(b) of
(EC) Regula-
tion No 40/94 (risk of confu-
sion)

Action brought on 18 June 2003 by MyTravel Group plc
against the Commission of the European Communities

(Case T-212/03)

(2003/C 200/51)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 18 June 2003 by MyTravel Group
plc, Manchester, United Kingdom, represented by D. Pannick,
QC, Mr A. Lewis, Barrister, Mr M. Nicholson and Ms S. Cardell,
Solicitors.

The applicant claims that the Court should:
— order that the Commission should pay to the applicant
under Article 288(2) EC Treaty as compensation for

damage either
amount as the Court in its discretion might order;

the sum of

[CONFIDENTIAL] or such

— order that interest is payable in respect of the compensa-
tion awarded from the date of judgment establishing the
obligation to make good the damage in this case at the
rate of 8 % per annum or such other rate as the Court in
its discretion may order;

— order that the costs of this application should be paid by

the Commission.

Pleas in law and main arguments

The applicant, formerly know as Airtours plc, seeks compensa-
tion from the Commission by way of damages for harm
caused to it by the decision of
the Commission in Case
No IV/M.1524 — Airtours/First Choice (1), declaring the
concentration between the applicant and First Choice incom-
patible with the common market.

The applicant contends that the conduct of the Commission in
carrying out its review of
the proposed acquisition of First
Choice by Airtours breaches rules of law which are intended
to confer rights on individuals. The applicant claims more in
particular that the Commission infringed Article 2 of Council
Regulation 4064/89 on the control of concentrations between
undertakings (2) and the general principles of sound adminis-
tration, care and diligence.

The applicant submits that in committing these breaches the
Commission manifestly and gravely disregarded the limits of its
discretion, and that these breaches were sufficiently serious to
warrant reparation under Article 288 EC Treaty.

The applicant refers in this respect to the judgment in Case
T-342/99, Airtours/Commission (3), annulling the Decision of
the Commission in Case No IV/M.1524 — Airtours/First
Choice. The applicant submits that the Court of First Instance
made due allowance for the margin of appreciation permitted
to the Commission, but nonetheless found that the decision
was vitiated by a series of manifest errors of assessment
regarding the creation of a dominant position. Such a manifest
error established in annulment proceedings equates according
to the applicant,
to a manifest disregard for the limits of
discretion and constitutes a sufficiently serious breach.

The applicant also submits that the fact that the Commission
enjoys a margin of discretion does not absolve it from the
obligation to observe the principles of sound administration.