Case T-10/06: Action brought on  11 January 2006  — PORTELA & C a , S.A. v OHIM
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cosmetic product, health service, pharmaceutical industry, pharmaceutical product, trade-mark law

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

C 60/48

EN

Official Journal of the European Union

11.3.2006

Form of order sought

Form of order sought

The applicant claims that the Court should:

— Annul the Decision of the First Board of Appeal of OHIM
of 14 September 2005 in Case R-897/2004-1 granting
registration of Community trade mark No 1 400 183 for
the following products:

Class 5 — pharmaceutical, veterinary and sanitary prepara-
tions; dietetic substances adapted for medical use, prepara-
tions for destroying vermin;

Class 42 — medical services, services related to pharmaceu-
tical
laboratories; research in the field of medicine and
laboratories.

— Order OHIM to pay all the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: PORTELA & Ca, S.A.

Community trade mark concerned: Bial (application No 1400183)

Proprietor of the mark or sign cited in the opposition proceedings:
Juan Torres Quadrado and Josep Gilbert Sanz

Mark or sign cited in opposition: Spanish trade mark BIAL

Decision of the Opposition Division: Opposition allowed in part

Decision of the Board of Appeal: Decision of the Opposition Divi-
sion upheld in its entirety

Pleas in law: The applicant claims that OHIM infringed Article
8(1)(b) of Regulation No 40/94 by interpreting it incorrectly
and that the contested decision is vitiated by infringements of
essential procedural requirements (the mark was not properly
presented in the opposition, the applicant was not provided,
within the period prescribed by law, with the relevant elements
of the earlier mark on which the opposition was based and the
decision on costs was incorrect).

The applicant claims that the Court should:

— Substantially reduce the fine imposed on Romana Tabacchi;

— Order the Commission to pay the applicant's costs;

— Order any other measure,

including any measure of an

investigative nature, which it considers appropriate.

Pleas in law and main arguments

The object of the present action is the partial annulment of the
Commission Decision of 20 October 2005 relating to a
proceeding under Article 81 EC (Case COMP/C-38.281/B.2 —
Raw tobacco — Italy), limited to the part concerning the calcu-
lation of the fine imposed on the applicant, and the resulting
reduction of the said fine.

In that decision, the defendant found that six undertakings
operating in Italy in the raw tobacco processing sector had
infringed Article 81(1) EC from 1995 until the beginning of
2002, by means of concerted agreements or practices aimed at
coordinating their individual purchasing strategies,
including
through the organisation of regular information exchanges and
mutual consultation. In particular, according to the Commis-
sion, the processors agreed maximum and average delivery
prices for the ‘Burley’ variety of raw tobacco, as well as the
volumes of the product to be purchased. The cartel extended to
include concerted action on bids in response to public competi-
tive procedures organised by AIMA-Azienda di Stato (the State
Corporation AIMA) in 1995 for action to be taken on the agri-
cultural market and by ATI-Azienda Tabacchi Italiani S.p.A. in
1998.

The Commission also found that, during the period between
February 1999 and November 2001, the Associazione Profes-
sionale Trasformatori Tabacchi
(Italian Professional
Association of Tobacco Processors) and the Unione Italiana
Tabacco (Italian Tobacco Union) adopted decisions concerning
their respective negotiating positions on prices for each grade
of each variety of tobacco with a view to entering into inter-
business agreements.

Italiani

Action brought on 19 January 2006 — Romana Tabacchi v
Commission

In support of its claims, the applicant pleads:

(Case T-11/06)

(2006/C 60/90)

Language of the case: Italian

Parties

Applicant: Romana Tabacchi Spa (Rome, Italy) (represented by:
M. Siragusa and G. Cesare Rizza)

Defendant: Commission of the European Communities

— Infringement of the principles of equality and proportion-
ality, to the extent to which the Commission omitted, for
the purposes of calculating the starting point for the fine,
to take into account the fact that the cartel had no, or at
most a modest, practical impact on the market;

— The illogicality of the statement of reasons and the infringe-
ment of the principle of equal treatment as regards the
failure to set progressive amounts for the basic fine in order
to adjust it to the size of the undertaking on which the fine
is imposed. In particular it maintains, on this point, that the
use of the market share for the last full year of the breach
should be mitigated and adjusted in all of the cases in
which an undertaking's participation in the alleged restric-
tive practices was marked by interruptions;