Case T-115/06: Action brought on  7 April 2006  — Fiskeri og Havbruksnæringens Landsforening and Others v Council
Date: 2006-04-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), anti-dumping legislation, fish farming

C 143/32

EN

Official Journal of the European Union

17.6.2006

Action brought on 12 April 2006 — Wesergold Geträn-
keindustrie v OHIM — Lidl Stiftung (VITAL& FIT)

40/94, as there is no likelihood of confusion between the
opposing trade marks.

(Case T-111/06)

(2006/C 143/64)

Language in which the application was lodged: German

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

Community trade mark (OJ 1994 L 11, p. 1)

Parties

Action brought on 7 April 2006 — Fiskeri og
Havbruksnæringens Landsforening and Others v Council

Applicant: Wesergold Getränkeindustrie GmbH & Co. KG
(Rinteln, Germany) (represented by: P. Godenbaum, T. Melchert
and I. Rohr, Rechtsanwälte)

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

Other party to the proceedings before the Board of Appeal of
OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

(Case T-115/06)

(2006/C 143/65)

Language of the case: English

Form of order sought

Parties

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market of 16
February 2006 (R 3/2005-2);

— order the OHIM to pay the costs.

Applicants: Fiskeri og Havbruksnæringens Landsforening (Oslo,
Norway), Norske Sjømatbedrifters Landsforening (Trondheim,
Norway), Salmar Farming AS (Frøya, Norway), Hydroteck AS
(Kristiansund, Norway), Hallvard Lerøy AS (Bergen, Norway),
Lerøy Midnor AS (Hestvika, Norway) (represented by: B. Servais
and T.S. Paulsen, lawyers)

Pleas in law and main arguments

Defendant: Council of the European Union

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The figurative mark ‘VITAL&
FIT’ for goods in Class 32 (Application no. 1 457 951).

Proprietor of the mark or sign cited in the opposition proceed-
ings: Lidl Stiftung & Co. KG.

Mark or
‘VITAFIT’ no. 1 050 163 for goods in Class 32.

sign cited in opposition: The German word mark

Form of order sought

— Annul Council Regulation (EC) No 85/2006 imposing defi-
nitive anti-dumping duties for imports of salmon origin-
ating in Norway; and

— order the Council to bear the costs of these proceedings.

Decision of the Opposition Division: Grant of the opposition

Pleas in law and main arguments

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Misinterpretation of the subject of the appeal by
the Board of Appeal
(Article 62(1) of Regulation (EC) No
40/94 (1)); breach of the right to a fair hearing and the obliga-
tion to state reasons (Article 73 of Regulation No 40/94);
breach of the obligation to take into account the facts and
evidence which were not submitted late (Article 73 of Regu-
lation No 40/94); breach of Article 8(1)(b) of Regulation No

The applicants, who are Norwegian salmon producers, farmers
and exporters or representing such undertakings, seek the
annulment of Council Regulation (EC) No 85/2006 of 17
January 2006 imposing a definitive anti-dumping duty and
collecting definitively the provisional duty imposed on imports
of farmed salmon originating in Norway (1) (‘contested regu-
lation’) as they find that the regulation violates several articles
of Council Regulation (EC) No 384/96 of 22 December 1995
on protection against dumped imports from countries not
members of the European Community (2) (‘basic regulation’).

17.6.2006

EN

Official Journal of the European Union

C 143/33

The Commission services had in the course of the procedure
leading to the contested regulation agreed to change the form
of measures from duties to minimum import prices. This was
confirmed by the contested regulation.

Action brought on 13 April 2006 — DeTeMedien v OHIM
(suchen.de)

(Case T-117/06)

(2006/C 143/66)

Language of the case: German

In support of their application, the applicants submit that the
sample of Norwegian producers/exporters, which is restricted
to exporting producers and does not comprise non-exporting
farmers and non-producing exporters, wasn't representative of
the structure of the Norwegian salmon industry and was incon-
sistent with previous decisions on samples of the Norwegian
salmon market.

Parties

Furthermore, the applicants allege that the defendant failed to
apply the lesser duty rule contained in Article 9(4) of the basic
regulation. According to the applicants, the weighted average
dumping margin was less than the weighted average injury
margin, and the minimum import price and the fixed duty
should therefore have been established on the basis of the
weighted average dumping margin and not on the basis of the
weighted average injury margin. As for the calculation of the
non-dumped minimum import price,
the applicants further
allege that the use, for the conversion from NOK into EUR, of
a three-year average exchange rate instead of
the average
investigation artificially
exchange
increased the non-dumped minimum import price.

the period of

rate for

Moreover, the applicants claim that the minimum import price
for salmon fillets wasn't based on representative data and that
it was determined in breach of Articles 3(5) and 20 of the basic
regulation and in violation of the principles of sound adminis-
tration, legitimate expectations and the rights of defence.

Finally, the applicants submit that the assessment of injury and
the causes hereto is flawed. Firstly, in the injury analysis the
defendant relied on the total of
the imports as ‘dumped
imports’ notwithstanding the fact that one company was found
not to be dumping. Secondly, the apparent price decrease of
the average sales prices in the Community industry was caused
by the conversion of GBP into EUR, all sampled Community
producers being based in the UK, and not by the imports.
Thirdly, the defendant failed to examine properly the impact
that rising costs of production in the Community may have
had on the situation of the Community industry.

(1) OJ 2006 L 15, p. 1.
(2) OJ 1996 L 56, p. 1.

Applicant: DeTeMedien, Deutsche
(Frankfurt, Germany)
Gehring, lawyers)

(represented by:

Telekom Medien GmbH
J. Fesenmair and I.

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

Form of order sought

— annul the decision of the First Board of Appeal of 30
January 2006 in appeal proceedings R 287/2005-1, and

— order the Office for Harmonisation to bear the applicant's

refundable costs

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘suchen.de’ for
goods and services in Classes 9, 16, 35, 36, 38 and 42 (Appli-
cation No 3 915 329)

Decision of the examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark applied for does have distinctive char-
acter and is not purely descriptive; thus, no absolute grounds
for refusal under Article 7(1)(b) and (c) or Article 7(2) of Regu-
lation (EC) No 40/94 (1) stand in the way of its registration.

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

Community trade mark (OJ 1994 L 11, p. 1).