Case T-26/06: Action brought on  25 January 2006  — Trioplast Wittenheim v Commission
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restriction on competition, restrictive trade practice

C 96/14

EN

Official Journal of the European Union

22.4.2006

Operative part of the order

1. The application for interim measures is dismissed.

2. The costs are reserved.

Pleas in law: Infringement of Article 8(1)(b) of EC Regulation
No. 40/94, as there is no risk of confusion between the
opposing trade marks, (i) due to the lack of similarity of the
goods and trade marks, and (ii) because the distinctive character
of the opposing trademark is limited to the graphical design.

Action brought on 14 December 2005 — Daishowa Seiki
v OHIM

Action brought on 25 January 2006 — Trioplast Witten-
heim v Commission

(Case T-438/05)

(2006/C 96/27)

Language in which the application was lodged: German

(Case T-26/06)

(2006/C 96/28)

Language of the case: Swedish

Parties

Applicant: Daishowa Seiki Co. Ltd (Osaka, Japan) (represented
by: T. Krüger, lawyer)

Parties

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

Other party to the proceedings before the Board of Appeal of
OHIM: Tengelmann Warenhandelsgesellschaft KG (Mülheim,
Germany)

Form of order sought

— Annul Decision R928/2004-1 of the First Board of Appeal
for the Office for Harmonisation in the Internal Market
(Trade Marks and Designs), made on 7 September 2005;

— order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs of this action
and of the objection proceedings R928/2004-1.

Applicant: Trioplast Wittenheim AS (Wittenheim, France)
(represented by: Tommy Pettersson, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— partially, annul Article 1(g) of the decision regarding the
period during which the applicant is held responsible for
the violation;

— partially, annul Article 2(f) of the decision regarding the
fine imposed on the applicant; in the alternative reduce the
fine;

Pleas in law and main arguments

— order the Commission to pay the applicant's costs.

Applicant for a Community trade mark: Daishowa Seiki Co.
Ltd

Community trade mark concerned: figurative mark ‘BIG PLUS’ for
goods in Class 7 (Metal machine tools, parts and tool holders)
Application no. 1 073 964

Proprietor of the mark or sign cited in the opposition proceed-
ings: Tengelmann Warenhandelsgesellschaft KG

Mark or sign cited in opposition: The national figurative mark
‘Plus’ for goods, inter alia in Classes 6 and 8

Decision of the Opposition Division: Rejection of the opposi-
tion

Decision of the Board of Appeal: Setting aside of the decision of
the Opposition Division

Pleas in law and main arguments

The applicant appeals against the Commission's decision in
Case COMP/F/38.354 — Industrial sacks (C(2005) 4634 final;
hereinafter
‘the contested decision’) by which a fine of
EUR 17.85 million is imposed on the applicant for partici-
pating in anticompetitive conduct in the market for industrial
sacks in Belgium, Germany, Spain, France, Luxembourg and
the Netherlands contrary to Article 81 EC.

The applicant does not dispute its participation in anticompeti-
tive conduct up to 23 March 1999, but ceased its infringement
in March 1999 when the applicant's new owner, Trioplast
Industrier, became aware of
the anticompetitive conduct.
According to the applicant, the Commission has thus wrongly
assessed the duration of the company's infringement.

22.4.2006

EN

Official Journal of the European Union

C 96/15

Furthermore, the applicant argues, with regard to the gravity of
the infringement, that, in comparison with the other companies
involved, the Commission has imposed a basic amount which
is too high by reference to the applicant's market share.

In addition, in support of its claim, the applicant submits that
the Commission's method of calculation for determination of
the fine was incorrect and that another method should have
been used, by which account should have been taken of the
fact that the applicant's infringement consists of three distinct
periods of
time, since the applicant was owned by three
different owners (St. Gobain, FLS and Trioplast Industrier) over
the time during which the infringement occurred. According to
the applicant, the Commission's method gives the result that
FLS and Trioplast Industrier's overall joint and several liability
exceeds the total fine imposed on the applicant and that in
practice FLS and Trioplast Industrier are held jointly and sever-
ally liable also to pay for the period when neither company
owned the applicant.

Furthermore, the applicant takes the view that the Commission
should have taken account of the fact that there are attenuating
circumstances with regard to the applicant's infringement since
the applicant was throughout a minor and passive participant
in the infringement. Moreover, according to the applicant, the
Commission did not take account of the 10 % rule in Regu-
lation No 1/2003, (1) and the Commission should have granted
the applicant leniency to a greater degree than was the case in
the contested decision.

Finally, the applicant claims that the Commission has failed to
apply the principles of legal certainty and proportionality.

(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 L 1, 4.1.2003, p. 1).

Other party to the proceedings before the Board of Appeal: Elia
Canelo Gutierrez (Talavera de la Reina, Spain)

Form of order sought

— annul the decision of the Second Board of Appeal of the
OHIM of 23 November 2005 (Case R 36/2005-2) relating
to Opposition Proceedings No. B 605 461, notification of
which was received on 30 November 2005;

— order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘J&B’ for goods
and services in classes 14, 18, 21, 25, 33 and 43 (Community
trade mark application No 2 696 383)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Elia Canelo Gutierrez

Mark or sign cited: International figurative trade mark ‘JOB’ for
goods in class 33 (registration No 275 247)

Decision of the Opposition Division: Rejects opposition

Decision of the Board of Appeal: Annuls the contested decision
and remits the case to the Opposition Division for further
prosecution

Pleas in law: Violation of Articles 8(1)(b), 8(2)(iii) and 73 of
Council Regulation (EC) No 40/94 and of procedural require-
ments, as contained in various rules of the Commission Regu-
lation (EC) No 2868/95.

Action brought on 27 January 2006 — Justerini & Brooks
Limited v OHIM

(Case T-32/06)

(2006/C 96/29)

Language in which the application was lodged: English

Action brought on 26 January 2006 — Bundesverband
deutsche Banken e.V. Berlin v Commission of the Euro-
pean Communities

(Case T-36/06)

(2006/C 96/30)

Language of the case: German

Parties

Applicant(s):
Kingdom) [represented by: B. Cordery, Solicitor]

Justerini & Brooks Limited (London, United

Parties

Applicant:
(Germany)
lawyers)

Bundesverband
Berlin
(represented by: H.-J. Niemeyer and K.-S. Scholz,

deutsche

Banken

e.V.

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

Defendant: Commission of the European Communities