Case T-53/05: Action brought on 24 January 2005 by Calavo Growers of California against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-04-02
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, Spain, action for annulment (EU), cannery, food industry, trade-mark law

2.4.2005

EN

Official Journal of the European Union

C 82/43

The grounds put forward by the applicant are similar to those
relied on in that case (infringement of the principle of equal
treatment and of Article 23(2) of Regulation No 1/2003).

2. order the Commission to pay the costs.

it is stated that the Commission applied more
In particular,
than against
severe dissuasive factors against
the basic
other Spanish processors,
amount of
the applicant's
conduct cannot be imputed to its parent companies Trans-
Continental Corporation Leaf Tobacco, Standard Commercial
Tobacco Corporation and Standard Commercial Corporation.

the fine imposed. Futhermore,

in the calculation of

the applicant

Likewise, the applicant submits that the guidelines on the calcu-
lation of fines and the principle of the protection of legitimate
expectations have been infringed, in so far as the Commission
failed to take into consideration attenuating circumstances that
it is the first time that the raw tobacco has been investigated,
that the applicant put an end to the infringements as soon as
the Commission took action, and in 1996 and 1997 the agree-
ments were not implemented.

(1) Not yet published in the Official Journal.

Action brought on 22 January 2005 by Agroexpansión
S.A. against the Commission of the European Commu-
nities

(Case T-38/05)

(2005/C 82/76)

(Language of the case: Spanish)

Pleas in law and main arguments

The decision at issue is the same as in Case T-24/05 Standard
Commercial and Others v Commission (1).

The grounds put forward by the applicant are similar to those
relied on in that case (infringement of the principle of equal
treatment and of Article 23(2) of Regulation No 1/2003).

In particular, it is alleged that the Commission erred in taking
into consideration the consolidated turnover of the group of
undertakings headed by DIMON INC., in order to determine
the amount of the fine imposed on the applicant. Furthermore,
AGROEXPANSION only became part of
that group in
November 1997.

Moreover, the Commission failed to take account of the attenu-
ating circumstance that the applicant ceased to engage in those
practices as soon as it became aware of the Commission's
measures of inspection.

(1) Not yet published in the Official Journal.

Action brought on 24 January 2005 by Calavo Growers of
California against the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case T-53/05)

(2005/C 82/77)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 January 2005 by Agroexpansión
S.A., Madrid (Spain), represented by Jaime Folguera Crespo and
Patricia Vidal Martínez, of the Madrid Bar.

The applicant claims that the Court should:

1. partially annul Article 3 of the Decision of the Commission
the fine

of 20 October 2004, reducing the amount of
imposed on Agroexpansión;

(Language in which the application was submitted: Spanish)

(Trade Marks and Designs)

An action against the Office for Harmonisation in the Internal
Market
(O.H.I.M.) was brought
before the Court of First Instance of the European Communities
on 24 January 2005 by Calavo Growers of California, repre-
sented by Enrique Armijo Chavarri and Antonio Castán Pérez-
Gómez, lawyers.

C 82/44

EN

Official Journal of the European Union

2.4.2005

The applicant claims that the Court should:

— set aside the decision of the First Board of Appeal of 8

November 2004 in Case R 159/2004, and

Action brought on 25 February 2005 by EDP-Energias de
Portugal S.A. against the Commission of the European
Communities

— order O.H.I.M. to pay the costs.

Pleas in law and main arguments:

On 8 March 2001 Luis Calvo Sanz applied for registration of
the figurative mark ‘CALVO’
in respect of
products in Classes 29, 30 and 31.

(No 2.127.132)

On 21 December 2001 Calavo Growers of California,
the
applicant in these proceedings, lodged a notice of opposition
against the earlier application, on the basis of the word Com-
munity trade mark ‘CALAVO’
(No 102.822) registered for
products in Classes 29 and 31. This notice of opposition fell
into two parts. The first contained a form in Spanish, indicating
the language of the opposition proceedings, the application for
registration under challenge, the opponent and its representa-
tive, the current account for payment of the fee and the earlier
Community trade mark. This first part also stated that the
opposition was based on ‘all the products/services in respect of
which the earlier trade mark has been registered/applied for’,
and on ‘an earlier trade mark and the risk of confusion’.

The second part of the notice of opposition contained a state-
ment of the grounds of opposition. That part of the notice was
drafted in English.

On 18 December 2003 the Opposition Division gave its deci-
sion No 2927/2003, upholding in part the applicant's opposi-
tion. That decision did not take into consideration the claims
made in English, because they had not been translated into the
language of the case within the period prescribed for that
purpose.

(Case T-87/05)

(2005/C 82/78)

(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 25 February 2005 by EDP-Energias
de Portugal, established in Lisbon (Portugal), represented by C.
Botelho Moniz, R. García-Gallardo, A. Weitbrecht and J. Ruiz
Calzado, lawyers.

The applicant claims that the Court should:

— annul the Commission's Decision of 9 December 2004 in
case number COMP/M.3440 EDP/GNI/GDP declaring the
concentration by which Energias de Portugal SA and ENI
Portugal Investment S.p.A. acquire joint control over Gás
incompatible with the common
de Portugal SGPS S.A.
market;

— order the Commission to pay the costs of the proceedings

including the costs of the applicant.

Pleas in law and main arguments

The competent Board of Appeal upheld the action brought by
the applicant for a Community trade mark against that deci-
sion, on the ground that the Opposition Division had no juris-
diction to rule on the opposition, because the applicant's argu-
ments on the merits of the case were inadmissible, for want of
translation into the language of the case.

By the contested decision the Commission declared incompa-
tible with the common market the concentration by which the
applicant
Investment S.p.A.
acquired joint control over Gás de Portugal SGPS S.A., a
company whose activities in the gas sector cover all levels of
the distribution and supply chain in Portugal.

together with ENI Portugal

In support of its claims, the applicant alleges infringement of
Articles 42(3) and 74(1) of Regulation (European Communities)
No 40/94 on the Community trade mark, in conjunction with
Rule 20(3) of the Implementing Regulations.

In support of its application the applicant submits first of all
that in conducting the procedure leading up to the contested
decision the Commission infringed the principle of good
administration and disregarded essential procedural require-
ments by not granting the applicant sufficient access to the
outcome of the market test of the commitments proposed by
the parties to the concentration and by failing to make an
impartial and diligent assessment of the proposed commit-
ments when evaluating the market test.