Case T-76/06: Action brought on  24 February 2006  — Plásticos Españoles (Aspla) v Commission
Date: 2006-02-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restrictive trade practice

C 108/24

EN

Official Journal of the European Union

6.5.2006

— Alternatively, appoint an expert or a body of experts with
responsibility for giving the Court guidance on whether or
on what conditions the shape of a manufactured good or
the representation of its outline can have as much influence
on the public's memory of it as an accompanying term, as
an indication of its business origin, and reserve the costs.

clothing, namely jackets,
jerseys,
shirts, pants, blouses, tights, shorts, hats, caps, sweatbands,
headbands, gloves, belts, shoes, boots, socks and aprons
(Class 25);

sweatshirts,

raincoats,

— order OHIM to pay the costs of this application.

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark repre-
senting a bag in respect of goods in Class 18 (Application No
003598571)

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 4 and Article 7(1)(b) of
Council Regulation No 40/94. The applicant argues that the
trade mark has enough distinctive character to distinguish and
characterise a bag or a range of bags from one undertaking
from those from other undertakings.

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SHIFT’ for
goods in classes 9, 16, 18 and 25 — application No 2419349

Proprietor of the mark or sign cited in the opposition proceedings:
Lloyd Lifestyle Limited

Mark or sign cited: The Community figurative mark and earlier
non-registered work mark ‘Swift’ and the national figurative
mark ‘Swift leathers’ for goods in classes 9 and 25

Decision of the Opposition Division: Refuses registration

Decision of the Board of Appeal: Annuls the contested decision
insofar as it rejected the application for ‘pressure air gauges’
and goods in classes 16 and 18; confirms the contested deci-
sion for the remainder

Action brought on 3 March 2006 — Fox Racing/OHIM

Pleas in law: Violation of Article 8(1)(b) of Council Regulation
(EC) No 40/94.

(Case T-74/06)

(2006/C 108/44)

Language in which the application was lodged: English

Action brought on 24 February 2006 — Plásticos
Españoles (Aspla) v Commission

Parties

Applicant: Fox Racing Inc. (Morgan Hill, USA) [represented by:
P. Brownlow, Solicitor]

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

(Case T-76/06)

(2006/C 108/45)

Language of the case: Spanish

Other party to the proceedings before the Board of Appeal: Lloyd IP
Limited (Penrith, United Kingdom)

Parties

Form of order sought

— annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Markets (Trade
Marks and Designs) (‘OHIM’), of 8 December 2005 (Case R
1180/2004 — 1) in part, insofar as it rejected the applica-
tion in respect of motorcycle and safety helmets and protec-
tive clothing for motorcyclists and cyclists (Class 9) and

Applicant: Plásticos Españoles S.A. (Aspla) (Torrelavega, Spain)
(represented by: E. Garayar and A. García Castillo, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the present action for annulment admissible;

6.5.2006

EN

Official Journal of the European Union

C 108/25

— annul Decision C(2005) 4634 final, of 30 November 2005,
in Case COMP/F/38.354 — Industrial bags, alternatively
substantially reduce the amount of the fine imposed on
Plásticos Españoles S.A.;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action seeks annulment of Decision C(2005) 4634 final, of
30 November 2005,
in Case COMP/F/38.354 — Industrial
bags. In the contested decision, the Commission declared that
the applicant, among other undertakings, had infringed Article
81 EC by having participated, between 1991 and 2002,
in
agreements and concerted practices in the industrial plastic bag
sector
the Netherlands, Luxemburg,
Spain and France. For those infringements, the Commission
imposed a fine on the applicant jointly and severally with the
undertaking Armando Álvarez S.A..

in Germany, Belgium,

In support of
following pleas:

its claims the applicant puts forward the

— error in the assessment of the facts by the Commission in
relation to the scale of the applicant's conduct, to the scope
of the product markets and geographic markets concerned
and the product quotas which serve as a basis for calcu-
lating the fines;

— violation of Article 81(1) EC and the principle of legal
certainty, on account of incorrect classification of the infrin-
gement as ‘single and continuous’ and incorrect determin-
ation of the responsibility of the undertakings sanctioned;

— in the alternative, violation of Article 81(1) EC and the prin-
ciple of legal certainty and equal treatment on account of
incorrect classification of the infringement as ‘single and
continuous’ with respect to the applicant, incorrect assess-
ment of the applicant's individual liability and discrimina-
tion as between itself and the undertaking Stempher B.V.
which, according to the Commission, had also participated
in the infringement in question;

— infringement of Article 15(2) of Regulation No 17/1962 (1)
and the Guidelines on the method of setting of fines on
account of manifest error in the calculation of the fine
imposed on the applicant and a manifest infringement of
the principle of equal
treatment and proportionality in
determining the amounts.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (English special edition: Series I
Chapter 1959-1962 p. 87)

Action brought on 3 March 2006 — Budapesti Erőmű v
Commission

(Case T-80/06)

(2006/C 108/46)

Language of the case: English

Parties

Applicant: Budapesti Erőmű ‘Zártkörűen Működő Részvénytár-
saság’ (Budapest, Hungary) [represented by: M. Powell, Solicitor,
C. Arhold, K. Struckmann, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision of the European Commission to open
the formal
investigation procedure in Case State aid C
41/2005 (ex NN 49/2005) — Hungarian Stranded Costs —
of 9 November 2005, or in the alternative to annul the
Decision as
agreements
as
concluded by the applicant are concerned;

the power purchase

far

— to award the applicant the costs of the present action;

— to take such other or further action as justice may require.

Pleas in law and main arguments

is a district heating supplier and electricity
The applicant
generator in Hungary. In the contested decision, the Commis-
sion decided to open a formal
investigation procedure into
alleged new State aid in the form of power purchase agree-
ments concluded between Hungarian electricity generators and
the public Hungarian transmission operator (1).

In support of its application, the applicant submits that the
Commission lacked competence to take the contested decision.
According to the applicant, it follows from Annex 4, Chapter
3, Section 1 of the Accession Treaty (2) and Article 1(b) of
Council Regulation No 659/1999 (3) that the Commission only
has jurisdiction over aid measures which are still applicable
after the date of accession of a new Member State. The appli-
cant
the power purchase agreements were
concluded prior to accession and are not still applicable after
accession.

submits

that