Case T -67/06: Action brought on  20 February 2006  — Elini N.V. v OHIM
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), jewellery and goldsmith's articles, trade-mark law

22.4.2006

EN

Official Journal of the European Union

C 96/27

Form of order sought

The applicant claims that the Court should:

respect of RKW. Finally, the applicant submits that Article
15(2) of Regulation No 17 has also been infringed as the fine
was wrongly fixed in relation to RKW in the light of the appli-
cation of the Notice on the non-imposition or reduction of
fines.

— annul

the defendant's decision of 30 November 2005
relating to a proceeding pursuant to Article 81 of the EC
Treaty (Case C(2005) 4635 final, COMP/F/38.354 — Indus-
trial bags), served on the applicant on 14 December 2005,
in so far as it concerns the latter;

in the alternative, reduce the fine imposed jointly and sever-
ally on the applicant;

— order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2005) 4634
final of 30 November 2005 in Case COMP/F/38.354 — Indus-
trial bags. In the contested decision a fine was imposed jointly
and severally on RKW AG Rheinische Kunststoffwerke (RKW)
and the applicant for infringement of Article 81 EC. According
to the Commission, they participated in a complex of agree-
ments and concerted practices in the industrial bags sector in
Belgium, Germany, Spain, France, Luxembourg and the Nether-
lands.

In support of its action the applicant submits that the contested
decision infringes the duty of administrative authorities to
comply strictly with the law. The defendant held the applicant
jointly and severally liable with RKW without a legal basis or
enabling act permitting it to do so.

In addition, the applicant complains that it was also held liable
for RKW's infringement. The conditions developed by the
Court of Justice for such liability were not satisfied. Further, the
applicant claims that, in holding it liable for RKW's infringe-
ment, the duty of administrative authorities to comply strictly
with the law has been infringed since the defendant's method
of levying fines does not fall within the scope of the enabling
provision, namely Article 15(2) of Regulation No 17 (1). In that
regard, the applicant also claims that the principles of equal
treatment and proportionality have been infringed.

In addition, the applicant complains that Article 15(2) of Regu-
lation No 17 and the guidelines on fixing fines have been
misapplied. In particular, the submission and evaluation of the
in
evidence in relation to RKW was irregular. Furthermore,
view of previous administrative practice RKW was dispropor-
tionately fined. As regards the amount of the initial sum for the
gravity of the infringement, the applicant alleges that RKW was
treated unequally, in several respects, in relation to the other
parties to which the contested decision was also addressed. In
addition, the applicant claims that the Commission erred in law
with regard to the assessment of the duration of the infringe-
ment and did not take mitigating circumstances into account in

(1) Council Regulation No 17: First Regulation implementing Articles
85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p.
87).

Action brought on 20 February 2006 — Elini N.V. v OHIM

(Case T -67/06)

(2006/C 96/45)

Language in which the application was lodged: Dutch

Parties

Applicant: Elini N.V.
Cornette and S. Tilsley, lawyers)

(Antwerp, Belgium)

(represented by: F.

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

Other party to the proceedings before the Board of Appeal of
OHIM: Rolex. S.A (Geneva, Switzerland)

Form of order sought

The applicant claims that the Court should:

— review and annul

the decision of

the Fourth Board of
Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 12 December 2005
(Case R-725/2004-4);

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Elini N.V.

Community trade mark concerned: the figurative mark ‘Elini’ for
goods in class 14 (jewellery; watches; watch straps, watch
glasses, watch chains and precious stones)

Proprietor of the mark or sign cited in the opposition proceed-
ings: Rolex S.A.

C 96/28

EN

Official Journal of the European Union

22.4.2006

Mark or sign cited in opposition: the figurative mark ‘Cellini’ for
goods in class 14 (registration number 1 456 102)

Pleas in law and main arguments

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

Decision of the Board of Appeal: annulment of the decision of the
Opposition Division and rejection of the application for a Com-
munity trade mark

Pleas in law: breach of Article 8(1)(b) of Regulation No 40/94.

Action brought on 23 February 2006 — Stempher and
Koninklijke Verpakkingsindustrie Stempher v Commission

(Case T-68/06)

(2006/C 96/46)

Language of the case: Dutch

Parties

Applicants: Stempher B.V. (Rijssen, Netherlands) and Koninklijke
Verpakkingsindustrie Stempher C.V.
J.K. de
Pree, lawyer)

(represented by:

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— annul Articles 1(2), 2, 3 and 4 of the Commission decision
of 30 November 2005, as amended by the Commission
decision of 7 December 2005, relating to a proceeding
pursuant to Article 81 of the EC Treaty (Case COMP/F/
38.354 — Industrial bags — C(2005) 4634 final), or at
least in so far as those provisions find that Stempher brea-
ched Article 81 EC, in so far as a fine is imposed on Stem-
pher in that regard, in so far as Stempher is enjoined to
bring that breach to an end and to refrain from repeating
any act or conduct described in Article 1, and any act or
conduct having an identical or similar object or effect, and
to the extent to which that decision is addressed to Stem-
pher;

— order the Commission to pay its own costs and those of the

applicants.

The applicants are challenging the Commission decision of
30 November 2005 relating to a proceeding pursuant
to
Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial
bags).

In support of their action, the applicants submit that the deci-
sion is at variance with Article 81 EC and with Articles 7 and
23 of Regulation No 1/2003 (1) by reason of the fact that there
was inadequate evidence to justify a finding that the applicants
had acted in breach of Article 81 EC.

The applicants submit further that the decision is contrary to
Article 25 of Regulation No 1/2003 and to Regulation
No 2988/74 (2), which was previously in force, on the ground
that the authority to pursue the alleged breach has become
time-barred.

In the alternative, the applicants submit that Article 2 of the
contested decision is at variance with Article 23(3) of Regu-
lation No 1/2003 and the guidelines relating to fines (3). The
severity of the breach of which the applicants were accused
was incorrectly appraised and was wrongly classified as being
very serious. Furthermore,
inaccurate
matters and information were taken into account in setting the
fine. This, they submit, resulted in a disproportionately heavy
fine.

the applicants allege,

The applicants submit in conclusion that the contested decision
was adopted in disregard of essential procedural requirements
and contrary to the principle that reasons must be given, inas-
much as no careful investigation was carried out and there was
no proper description of the breach in which the applicants are
alleged to have participated or of the market on which that
breach allegedly took place. Nor, according to the applicants, is
there any description of the factors which formed the basis for
the appraisal of the gravity of the breach of which they stand
accused.

(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 (Text with EEA relevance) (OJ 2003 L 1,
p. 1).

(2) Regulation (EEC) No 2988/74 of the Council of 26 November 1974
concerning limitation periods in proceedings and the enforcement
of sanctions under the rules of the European Economic Community
relating to transport and competition (OJ 1974 L 319, p. 1).

(3) Information from the Commission - Guidelines on the method of
setting fines imposed pursuant to Article 15(2) of Regulation No 17
and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).