Case T-438/05: Action brought on  14 December 2005  — Daishowa Seiki v OHIM
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), machine tool, trade-mark law

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.