Case T-30/05: Action brought on 28 January 2005 by William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG against the Commission of the European Communities
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), control of restrictive practices, fine, haberdashery, rights of the defence

30.4.2005

EN

Official Journal of the European Union

C 106/25

Pleas in law and main arguments

— annul the Commission's Decision C(2004) 4221 final of 26
October 2004 in Case COMP/F-1/38.338-PO/Nadeln, in so
far as it relates to the applicants;

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
sought:

Word mark
products
etc.), Community
application No. 1 723 931

for
‘AMPLITUDE’
in class 9 (eyeglasses
trade mark

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

Indo Internacional S.A.

— in the alternative, cancel

the fine of EUR 30 000 000
jointly and severally imposed on the applicants or (further
in the alternative) reduce it;

— order the defendant to pay the costs of the proceedings.

Mark or sign cited in
opposition:

National figurative mark ‘AMPLY’
for products in class 9 (eyeglasses
etc.)

Pleas in law and main arguments

Decision of the Opposi-
tion Division:

Opposition rejected

Decision of
of Appeal:

the Board

Annuls contested decision; regis-
tration refused

Pleas in law:

Violation of Article 8 paragraph
1(b) of Regulation 40/94 (1)

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

Community trade mark (OJ 11, p. 1)

In the contested decision, the Commission found that during
the period from 10 September 1994 to 31 December 1999,
the applicants and other undertakings had infringed Article
81(1) EC by particpating in concerted practices and entering
into a series of formal bilateral agreements which were to be
regarded as a tripartite agreement, the effect and object of
which were, first, to share the European hard haberdashery
market — in other words, functional market sharing between
the hand sewing and special needles market, the wider markets
for needles and other hard haberdashery markets — and
secondly, sharing the European market for needles;
in other
words, geographic market sharing in the needles market.

Action brought on 28 January 2005 by William Prym
GmbH & Co. KG and Prym Consumer GmbH & Co. KG
against the Commission of the European Communities

(Case T-30/05)

(2005/C 106/57)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 January 2005 by William Prym
GmbH & Co. KG and Prym Consumer GmbH & Co. KG, Stol-
berg (Germany), represented by H.J. Meyer-Lindemann, lawyer,
with an address for service in Luxembourg.

The applicants claim that the Court should:

The application is based on three pleas in law. In the first plea
the applicants allege breach of the right to a fair hearing and of
the obligation to state reasons. According to the applicants, the
defendant failed adequately to address various arguments which
the applicants put forward, and it was not clear why the defen-
dant had proceeded on the basis of a particularly serious infrin-
gement. Also, the reasons for the amount of the fine were
simply in a standard form, so that the applicants could not
establish whether factors favourable to them had been taken
into account. Finally, the applicants argue that the defendant's
reasons were subsequently corrected.

In the second plea, the applicants refer to several allegedly
material errors in the application of Article 81(1) EC. No fine
could have been imposed on the first applicant because it could
not be held responsible for the second applicant's conduct.
Furthermore, the defendant had failed to take into account the
fact that the second applicant had made a loss on the goods
concerned, and that
the agreement on geographic market
sharing was a condition of entry of another associated under-
taking into the market for suture needles, and that this agree-
ment therefore restricted competition which would otherwise
not have existed at all. Further, the defendant had misjudged
the size and economic power of that other undertaking.

C 106/26

EN

Official Journal of the European Union

30.4.2005

The third plea concerns assessment of the fine. In the appli-
cants' view, such a large fine amounts to a penalty akin to
those that might be imposed under criminal
law, for which
there is insufficient authority under the provisions of Article
23(3) of the Regulation (1), since the legislature itself is required
to specify in sufficient detail the particular basis on which the
fine is to be assessed. In any event, the fine infringes Article
23(2) of Regulation 1/2003, as it amounts to more than 10 %
of the total turnover of each of the two applicants and is
completely disproportionate to the economic effects of the
offence, as well as to the fine imposed on another associated
undertaking. In addition, the applicants have been prejudiced
by the arbitrary separation of the ‘hard haberdashery: needles’
case from the ‘hard haberdashery: fasteners’ case. Finally, the
defendant failed to take into account various mitigating factors
in the applicants' favour and to grant them a reduction in the
fine for not disputing the facts.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ 2003 L 001, p. 1).

— accept the appeal against the Decision of the First Board of
Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) in the case R 170/2004-
1, which rejected the appeal filed against the refusal of the
Community trademark 1.954.601 in class 25;

— declare the registration of the Community trademark no.
1.954.601 ‘BROTHERS BY CAMPER’ possible for all the
products in class 25;

— order that each party will bear his own costs, and the

common expenses in half.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

The applicant

Community trade mark
concerned:

goods

The figurative mark ‘BROTHERS
by CAMPER’
and
for
services in classes 18, 25 and 39
(leather, clothing, footwear, head-
gear, transport …) — application
No 1 954 601

Proprietor of mark or
sign cited in the opposi-
tion proceedings:

JC AB

Action brought on 31 January 2005 by Camper, S.L.,
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

Trade mark or
cited in opposition:

sign

(Case T-43/05)

(2005/C 106/58)

Decision of the Opposi-
tion Division:

The Swedish, Finnish and Danish
figurative mark
for
goods in class 25 (clothing, foot-
wear and headgear)

‘Brothers’

Rejection of the opposition insofar
as it was based on the earlier
Swedish registration. Opposition
upheld for part of the contested
goods, namely ‘clothing, footwear,
headgear’ in class 25, insofar as it
was based on the Danish and
Finish earlier registrations.

(Language in which the application was lodged: English)

An action against the Office for Harmonisation in the Internal
Market
(Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 31
January 2005 by Camper, S.L., established in Inca, Mallorca
(Spain), represented by I. Temiñ o Ceniceros.

JC AB established in Mölnlycke, (Sweden) was also a party to
the proceedings before the Board of Appeal.

The applicant claims that the Court should:

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the applicant's appeal

to such an extent

The conflicting trademarks are not
similar
that
there exists a likelihood of confu-
sion within the meaning of Article
8(1)(b) of Council Regulation No
40/94.