Case T-208/06: Action brought on 8 August 2006 — Quinn Barlo and Others v Commission
Date: 2006-08-08
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), merger control, price agreement, restriction on competition, restrictive trade practice

C 224/52

EN

Official Journal of the European Union

16.9.2006

Pleas in law and main arguments

Form of order sought

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘milko
∆ΕΛΤΑ’ for goods in class 30 (milk with cocoa) — application
No 2 474 674

Proprietor of the mark or sign cited in the opposition proceedings:
Kraft Foods Schweiz Holding AG

Mark or sign cited: The Community, international and national
figurative marks and word marks ‘MILKA’ for goods in classes
5, 29, 30 and 32

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the obvious and large differences of the two
marks are sufficient to exclude any likelihood of confusion.
According to the applicant, the two conflicting trade marks
create overall a very different visual, phonetic and conceptual
impression, especially when taking the second word ‘∆EΛTA’
into consideration.

Action brought on 8 August 2006 — Quinn Barlo and
Others v Commission

(Case T-208/06)

(2006/C 224/108)

Language of the case: English

Parties

— In main order, annul the decision insofar as it holds that
the applicants have infringed Article 81 EC and Article 53
EEA Agreement (annulment of Articles 1 and 2 as they
relate to the applicants);

— in subsidiary order, annul Article 2 of the decision insofar

as it relates to the applicants;

— in further subsidiary order, annul Article 2 of the decision
insofar as it imposes a fine on the applicants of EUR 9
million and to reduce the fine in line with the arguments of
this application;

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

Pleas in law and main arguments

The applicants seek the partial annulment of the Commission's
Decision C(2006) 2098 final of 31 May 2006 in Case COMP/F/
38.645 — Methacrylates, by which the Commission found that
the applicants had infringed Article 81 EC and Article 53 of
the Agreement on the European Economic Area by partici-
pating in a cartel which consisted of discussing prices, agreeing,
implementing and monitoring price agreements either in form
of price increases, or at least stabilisation of existing price
levels, discussing the passing on of additional service costs to
customers, exchange of commercially important and confiden-
tial market and/or company relevant information and partici-
pating in regular meetings and other contacts to facilitate the
infringement.

In support of their application, the applicants invoke two pleas
in law.

Firstly, the applicants submit that the contested decision is erro-
neous as it does not establish to the requisite standard of proof
that the applicants participated in a single and common anti-
competitive scheme and in a continuous infringement. Further-
more, the role of the applicant's representatives at four specific
meetings is assessed incorrectly and, apart from the applicants
presence at these four meetings, the contested decision contains
no evidence that the applicants have engaged in any conduct
that is characterised as unlawful in the decision.

Secondly,
the applicants invoke an infringement of Article
23(3) of Regulation No 1/2003 (1) due to an incorrect assess-
ment of the duration of the alleged infringement, an incorrect
assessment of the gravity of the alleged infringement and an
incorrect assessment of the mitigating circumstances.

Applicants: Quinn Barlo Ltd (County Cavan,
Ireland), Quinn
Plastics NV (Geel, Belgium) and Quinn Plastics GmbH (Mainz,
Germany)
(represented by: W. Blau, F. Wijckmans and F.
Tuytschaever, lawyers)

(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 2003 L 1, p. 1).

Defendant: Commission of the European Communities