Case T-32/06: Action brought on  27 January 2006  — Justerini & Brooks Limited v OHIM
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

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