Case T-52/06: Action brought on  21 February 2006  — Harry's Morato 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 96/19

Pleas in law and main arguments

Action brought on 21 February 2006 — Harry's Morato v
OHIM

is challenging the Commission decision of
The applicant
30 November 2005 relating to a proceeding pursuant
to
Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial
bags), in which the applicant was held to be jointly and sever-
ally liable in respect of its participation in a cartel and ordered
to pay a fine.

In support of its action the applicant alleges breach of Article
81 EC, Article 253 EC, and Article 23(2) of Regulation No 1/
2003, as well as infringement of the principle of care, the prin-
ciple that reasons must be given, and the principle of equal
treatment.

The applicant first submits that the Commission has misunder-
stood the applicant's defence with regard to its conduct both
before and after 1997. While the applicant does not deny that
it took part in the cartel, it points out that, prior to 1997, it
was entirely dependent on its then parent company. After
1997, however, it was independent and its intentions altered
gradually but fundamentally.

The applicant goes on to submit that the Commission proceeds
on the basis of an erroneous appraisal of the facts with regard
to the applicant's participation in the ‘Valveplast’, ‘Benelux’ and
‘Teppema’ groups, as also with regard to its participation in the
‘Belgium’ and ‘Block Bags’ groups. The applicant claims that the
Commission accepted a number of conclusions which were
negligent and inaccurate in regard to several forms of conduct.
The applicant also points out that the Commission failed to
take any account of the fact that the ‘Belgium’ and ‘Block Bags’
groups were terminated prior to 1997.

Furthermore, the applicant alleges that the Commission erred
in its appraisal of the facts relating to the determination of
geographical markets. The applicant points out in this regard
that it has no turnover in Spain and only a minimal turnover
in France.

The applicant also criticises the Commission on the ground
that it did not apply the leniency notice to the applicant and
that it failed to treat certain facts indicated by the applicant as
amounting to mitigating circumstances.

With regard to the determination of the basic amount of the
fine, the applicant disputes that the individual market shares
were determined on the basis of turnover achieved instead of
tonnage, the application of differentiated treatment in cate-
gories on the basis of market share and the expression of that
differentiation in categories, as well as the application of the
basic amount of the fine to each category as determined.

The applicant concludes that the Commission was wrong to
decide that the applicant and Kendrion N.V. constituted an
economic unit, on which ground Kendrion was unjustly fined
as a result of a breach committed by the applicant.

(Case T-52/06)

(2006/C 96/35)

Language of the case: Italian

Parties

Applicant: Harry's Morato SpA (Altavilla Vicentina, Italy) (repre-
sented by: Niccoló Ferretti, Giovanni Casucci, Fabio Trevisan,
lawyers)

Defendant: Office for Harmonisation in the Internal Market
(OHIM)

Other party to the proceedings before the Board of Appeal:
Ferrero OhG mbH

Form of order sought

The applicant claims that the Court should:

— amend decision R 600/2005-1 of the First Board of Appeal

of 16 December 2005;

further

to the application for

— call on the OHIM to immediately register the trade mark
registration No
‘Morato’
in the absence of
1 849 439 and subsequent restriction,
any real subjective impediment and in any case in view of
the fact
it does not conflict with the trade mark
‘MORATO’, and order the defendant to pay the costs.

that

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘Morato’ (appli-
cation for registration No 1 849 439), for goods in Class 30.

Proprietor of the mark or sign cited in the opposition proceed-
ings: FERRERO OHG mbH.

Mark or sign cited in opposition: German word mark ‘MORETTO’
(No 39 707 273), for goods in Class 30.

C 96/20

EN

Official Journal of the European Union

22.4.2006

Decision of
refusal of the application for registration.

the Opposition Division: Opposition allowed and

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Lapse of the trade mark ‘MORETTO’ on grounds of
lack of use, and the incorrect application of Article 8(1)(b) of
Regulation (EC) No 40/94 (risk of confusion).

Action brought on 22 February 2006 — Kendrion v
Commission

(Case T-54/06)

(2006/C 96/36)

Language of the case: Dutch

Parties

Applicant: Kendrion N.V. (Zeist, Netherlands) (represented by: P.
Glazener and C.C. Meijer, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— set aside in whole or in part the decision addressed to the

applicant, inter alios;

— set aside or reduce the fine imposed on the applicant;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging the Commission Decision of 30
November 2005 relating to a proceeding pursuant to Article
81 of the EC Treaty (Case No COMP/F/38.354 — Industrial
bags), in which the applicant was held to be guilty of infringing
the rules on competition and ordered to pay a fine.

In support of its action the applicant alleges breach of Article
81 EC, Article 253 EC and Article 15(2) of Regulation No
1/2003, on the ground that the operative part of the decision
is inconsistent with its grounds. The applicant submits that,
while it is not accused in the grounds of the contested decision
of individual participation in the breach, it is accused in the
operative part of breaching Article 81 EC.

The applicant goes on to submit that there has been a breach
of Article 81 EC, Article 253 EC and Article 23(2) of Regu-
lation No 1/2003 by reason of the fact that the Commission
wrongly assumed that the applicant and Fardem Packaging B.V.
formed a single economic unit, with the result that the appli-
cant was unjustly fined as a result of a breach by Fardem Packa-
ging.

The applicant submits that
the Commission also breached
Article 81 EC, Article 253 EC and Article 23(2) of Regulation
No 1/2003 and infringed general principles of law, including
the duty of care, the prohibition of arbitrary action, and the
principles of equality and proportionality.

The applicant goes on to submit that the Commission held the
applicant liable for a breach committed by Fardem Packaging,
contrary to other Commission decisions in which the parent
company was not held liable. Furthermore, the applicant, in its
capacity as parent company, incurred a fine in excess of that
for which the subsidiary, which committed the breach, was
held jointly and severally liable. The applicant claims further
that it was treated in a manner different to the other parent
companies held jointly and severally liable for breaches
committed by their subsidiaries. The fine imposed on the appli-
cant also amounts, it argues, to an infringement of the principle
of proportionality and the duty of care.

The applicant concludes by alleging a breach of the guidelines
for the calculation of fines, in particular as Article 5(b) of those
guidelines was not applied. The applicant submits that the
Commission failed to take proper account of the specific char-
acteristics of the undertaking.

Action brought on 22 February 2006 — RKW v Commis-
sion

(Case T-55/06)

(2006/C 96/37)

Language of the case: German

Parties

Applicant: RKW AG Rheinische Kunststoffwerke (Worms,
Germany) (represented by: H.-J. Hellmann, lawyer)

Defendant: Commission of the European Communities