Case T-458/05: Action brought on  30 December 2005  — Tegometall International v OHIM
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), furniture industry, trade-mark law

C 60/46

EN

Official Journal of the European Union

11.3.2006

Action brought on 30 December 2005 — Zwicky v
Commission

(Case T-457/05)

(2006/C 60/86)

Language of the case: German

Parties

Applicant: Zwicky & Co. AG (Wallisellen, Switzerland) (repre-
sented by:
J. Burrichter, B. Kasten and S. Orlikowski-Wolf,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Article 1(1) of the decision in so far as it declares
that the applicant infringed Article 81 EC and Article 53 of
the EEA Agreement as
regards Sweden, Norway and
Finland, or in the alternative for the period from January
1990 up to and including December 1993;

— annul Article 2 of the decision in so far as it imposes a fine

of EUR 0.174 million on the applicant;

— in the alternative, reduce the fine imposed in Article 2 of

the decision as appropriate;

— annul Article 3 of the decision as regards the applicant;

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

Pleas in law and main arguments

The applicant
is challenging Commission Decision C(2005)
3452 final of 14 September 2005 in Case 38.337 — PO/
Thread (amended by the defendant's decision of 13 October
2005). In the contested decision a fine was imposed on the
applicant for infringement of Article 81 EC and Article 53 of
the EEA Agreement.

Moreover, Article 2 of the defendant's decision infringes Article
15(2) of Regulation No 17/1962 (2) or Article 23(2) of Regu-
lation No 1/2003. That illegal act is based on the infringement
of fundamental principles regarding the assessment of fines.

Furthermore, the defendant infringed Article 15(2) of Regu-
lation No 17/1962 or Article 23(2) of Regulation No 1/2003
by way of Article 2 of the contested decision, inasmuch as it
incorrectly applied the 1996 Leniency Notice to the detriment
of the applicant.

Fifthly, the applicant submits that Article 2 of the contested
decision is a violation of the principle of proportionality as
insufficient regard was had to the individual position of the
applicant in fixing the fine.

Lastly, the applicant submits that the direction, in Article 3 of
the Commission's decision, to redress infringements and desist
from them in future infringes Article 7(1) of Regulation No
1/2003 as it is neither necessary nor proportionate in the
applicant's case.

(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 1, p. 1).

(2) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (OJ, English Special Edition 1959-
1962, p. 87).

Action brought on 30 December 2005 — Tegometall
International v OHIM

(Case T-458/05)

(2006/C 60/87)

Language in which the application was lodged: German

In support of its application the applicant is relying on six
pleas in law.

Parties

First,
it alleges infringement of Article 7 of Regulation No
1/2003. (1) In this connection it submits that the finding as to
the extent and duration of the infringements in Article 1(1) of
the contested decision is incorrect.

In its second plea in law the applicant submits that there has
been an infringement of Article 23(2) of Regulation No
1/2003. It considers that the fine imposed on it exceeds the ten
percent of its total turnover in the business year preceding the
decision. Consequently the imposition of the fine on the appli-
cant in Article 2 of the contested decision is unlawful.

Applicant: Tegometall International AG (Lengwil, Switzerland)
(represented by: H. Timmann, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Wupperman AG (Leverkusen, Germany)

11.3.2006

EN

Official Journal of the European Union

C 60/47

Form of order sought

The applicant claims that the Court should:

— alter the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 21
October 2005 in Case R 1063/2004-2, served on 2
November 2005, as amended by Corrigendum of 16
November 2005, served on 23 November 2005, and
dismiss the application for declaration of invalidity of Com-
munity trade mark No 1 227 743 of 23 July 2003;

— in the alternative, annul that decision and refer the case
back to the Second Board of Appeal for further delibera-
tion;

— order the applicant in the invalidity proceedings to pay the
costs of the proceedings before the Cancellation Division
and the Board of Appeal and of the present action.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: The word mark TEK for goods in
Classes 6 and 20 (shelves and parts of shelves,
in particular
hanging baskets for shelves, all the aforesaid goods of metal or
not of wood) — Community trade mark No 1 227 743

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Wupperman AG

Decision of the Cancellation Division: Dismissal of the application
for declaration of invalidity

Decision of the Board of Appeal: Annulment of the decision of
the Cancellation Division

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94, since the facts found by the Board of
Appeal do not justify cancellation of the mark. In addition, the
Board of Appeal has infringed the applicant's right to a fair
hearing.

Action brought on 30 December 2005 — MPDV Mikrolab
v OHIM

(Case T-459/05)

(2006/C 60/88)

Language in which the application was lodged: German

Parties

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

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Second Board of Appeal of 19
the appeal proceedings R

regards

October 2005 as
1059/2004-2, and;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘manufacturing
score card’ for goods and services in Classes 9, 35 and 42 —
Application No 3 334 596

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regu-
lation No 40/94 as the mark for which registration is sought is
capable of being protected because the fact that the elements
constituting the mark sought could, each in themselves, or, as
part of a different constellation, perhaps have a descriptive
content is not sufficient to preclude protection.

Infringement of Article 7(1)(b) of the Regulation, inasmuch as
the overall combination of elements, as regards the goods and
services for which registration of the mark is sought, is imagi-
native and conveys an unclear and vague meaning which goes
beyond a mere bringing together of the terms.

Action brought on 11 January 2006 — PORTELA & Ca,
S.A. v OHIM

(Case T-10/06)

(2006/C 60/89)

Language in which the application was lodged: Portuguese

Parties

Applicant: PORTELA & Ca, S.A.
Portugal) (represented by João M. Pimenta, lawyer)

(S. Mamede do Coronado,

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

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverar-
beitung und Mikroprozessorlabor (Mosbach, Germany) (repre-
sented by W. Göpfert, lawyer)

Other parties to the proceedings before the Board of Appeal: Juan
Torres Quadrado and Josep Gilbert Sanz