Case T-341/03: Action brought on 3 October 2003 by El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market (OHIM)
Date: 2003-11-29
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, trade-mark law

29.11.2003

EN

Official Journal of the European Union

C 289/35

The applicant claims that the Court should:

— annul

the Commission’s decision of 16 July 2003,
imposing a fine of 10,35 million euros on the applicant;

— in the alternative, withdraw the fine or reduce its amount;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a French limited liability company 99 %-owned
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging
predatory prices for its Pack eXtense and Wanadoo ADSL
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market
for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.

— applied an erroneous test on the coverage of costs
in place of the only relevant test, which showed that
the full costs connected with the services concerned
were covered for the whole of the period referred to
in the decision;

— refused the applicant the right to align its prices on

those charged by its competitors;

— committed a serious error of law, exacerbated by
obvious errors of assessment, in implementing the
test for predatory pricing that it used, particularly
by failing to take account of the highly competitive
market context;

— concluded that a predatory pricing plan existed

without adducing the necessary evidence.

In the alternative, the applicant claims that the fine should be
annulled, or very substantially reduced.

In support of its claims, the applicant argues:

— Infringement of essential procedural requirements, and in

particular of its defence rights, in that the Commission:

Action brought on 3 October 2003 by El Corte Inglés S.A.
against the Office for Harmonisation in the Internal
Market (OHIM)

— infringed the principle that violations are to be
attributed to the offender only, in that it held against
the applicant matters which it imputes to the ‘France
Telecom Group’ and on which neither the applicant
nor France Telecom were in a position to submit
observations. In that respect, the applicant insists
that France Telecom and the applicant itself are two
distinct legal persons;

(Case T-341/03)

(2003/C 289/71)

(Language of the case: Spanish)

— failed to communicate its final test on the coverage
in its
of costs in a statement of objections, and,
decision, determined a duration of the infringement
longer than that mentioned in the statement of
objections;

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 3 October 2003 by El Corte
Inglés S.A, having its registered office in Madrid, represented
by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.

— gave no reason for abandoning the principle of
alignment of prices laid down by the Community
case-law.

The applicant claims that the Court should:

— Infringement of Article 82 of the EC Treaty, in that the

Commission:

— gave an incorrect definition of the market, on which
the applicant had in any case never held a dominant
position;

— set aside the decision of the First Board of Appeal of

OHMI of 9 July 2003 in Case R 0565/2002-1;

— refuse to register as a Comunity mark No 488.999

DAVID LLOYD in Class 25, and

— order the other party or parties to pay the costs.

C 289/36

EN

Official Journal of the European Union

29.11.2003

Pleas in law and main arguments

Applicant for the Com- Whitbread PLC.
munity mark:

Community mark for
which application was
made:

Figurative mark ‘David Lloyd’ —
Application No 488.999 for
products in Classes 3, 5, 25, 28,
36, 41 and 42.

— order the Commission (Enterprise Directorate General) to
re-evaluate the tender submitted by European Dynamics;

— order the Commission to pay European Dynamics’ legal
and other fees and expenses incurred in connection with
this Application.

Applicant

Pleas in law and main arguments

Holder of the mark or
sign bringing the oppo-
sition proceedings:

Opposing mark or sign:

No 807.974/9 and No 278.853
‘LLOYD’S’, for goods in Class 25
(clothing and general accessories)

Decision of the Oppo-
sition Division:

Opposition rejected

Decision of the Board of
Appeal:

Appeal dismissed

Reasons relied on:

application

of
Incorrect
Article 8(1)(b) (likelihood of con-
fusion), 8(2)(c) (well known earlier
mark) and 8(5) Regulation (EC)
No 40/94

Action brought on 30 September 2003 by European
Dynamics S.A. against the Commission of the European
Communities

(Case T-345/03)

(2003/C 289/72)

(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 30 September 2003 by European
Dynamics S.A., Athens, (Greece), represented by S. Pappas,
lawyer.

The applicant claims that the Court should:

— annul the Commission’s (Enterprise Directorate General)
decision to evaluate European Dynamics’ tender as not
successful;

The object of the present case is the annulment of the Decision
of the European Commission to reject the applicants bid, filed
in response to the Call of Tender ENTR/02/055 — CORDIS
for the ‘Development and Provision of Services in support of
the Community R&D Information Service (CORDIS)’ Lot 2
‘Development’ (OJ 2002/S 225-178776). This Decision con-
cluded that the TRASYS/Intrasoft International Consortium
bid was superior to that of the applicant.

CORDIS, the European Commission’s research and develop-
ment information service,
is an informatics tool offering
practical information on the European research programs and
funding opportunities, facilitating research results take up
and and technology transfers, hosting services on European
innovation, covering all research and innovation related news
developments and providing a central access to European and
National contact points

In support of its conclusions, the applicant submits that:

— The violation of the principles of transparency and non-
discrimination, in as much as the provisions on non-
paid running-in periods seriously restrict competition by
favouring the incumbent contractor since it has been
given major financial advantages by the contracting
authority unilateral, which allowed it to submit an offer
significantly cheaper that any other competitor. Besides,
the time-limit for providing information about the role
of Autonomy in CORDIS (Enterprise Directorate General
addresses such information just four weeks before the
tender submission deadline) has given a big advantage to
the TRASYS/Intrasoft consortium in relation to other
Lot 2 tenderers. Additionally, ensuring the call for tender
procedure, all bidders -except the incumbent contractor
— were prevented from having access to a number of
highly critical technical information on the actual status
of the CORDIS projects and particularly on the CORDIS
DATABASE SERVICE. Moreover,
the Commission
declined to communicate to all tenderers significant and
useful details on the HW/SW, scripts, technology and
processes currently in use for operating the CORDIS
database services, while, at
it asked
the tenderers to specify what part of that ‘unknown’
equipment is to be taken over, whilst all this information
was fully available to TRASYS/Intrasoft right from the
beginning.

the same time,