Case T-43/05: Action brought on 31 January 2005 by Camper, S.L., against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-04-30
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), leather industry, trade-mark law

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.