Case T -148/06: Action brought on 26 May 2006 — Marie Claire v OHIM — Marie Claire Album (MARIE CLAIRE)
Date: 2006-08-12
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, trade-mark law

12.8.2006

EN

Official Journal of the European Union

C 190/23

Action brought on 22 May 2006 — SANOFI AVENTIS v
OHIM — G.D. SEARLE (‘ATURION’)

Action brought on 26 May 2006 — Marie Claire v OHIM
— Marie Claire Album (MARIE CLAIRE)

(Case T -146/06)

(2006/C 190/41)

(Case T -148/06)

(2006/C 190/42)

Language in which the application was lodged: Spanish

Language in which the application was lodged: Spanish

Parties

Parties

Applicant: SANOFI AVENTIS, S.A. (Paris, France) (represented
by: E. Armijo Chavarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
G.D. SEARLE LLC

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of

3 February 2006 in Case R 227/2005-1;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: G.D. SEARLE LLC.

Community trade mark concerned: Word mark ‘ATURION’ for
goods in Class 5 — application No1 662 311.

Proprietor of the mark or sign cited in the opposition proceedings:
The applicant.

Mark or sign cited in opposition: National word mark ‘URION’ for
goods in Class 5.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94, given that the marks in question may create a likeli-
hood of confusion on the market.

Applicant: Marie Claire (Castellón, Spain)
Fernández Mateos and T. Marín Bataller, lawyers)

(represented by: T.

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

Other party to the proceedings before the Board of Appeal of OHIM:
Marie Claire Album SA.

Form of order sought

— annul the decision of the Second Board of Appeal of 6

March 2006 in Case R-530/2004-2;

— declare, accordingly,

the Community trade mark
applied for is not caught by the prohibitions in Article
8(5)CMR 40/94, since such provisions do not apply to this
case;

that

— declare that the Community trade mark applied for, No
77.834 ‘MARIE CLAIRE’, does not take unfair advantage or
is not detrimental to the distinctive character or the reputa-
tion of the earlier opposing mark without due cause;

— declare that the prohibitions in Article 8(1)(b) CMR 40/94
are not applicable to the Community trade mark applied
for, as already held in both the decision of the Opposition
Division and the Second Board of Appeal of OHIM;

— allow registration of Community trade mark No 77.834
‘MARIE CLAIRE’ in order to distinguish ‘Swimwear; lingerie
and underwear’, in Class 25 of the International Classifica-
tion, for the benefit of the applicant;

— order OHIM to pay the costs together with any party which

appears as a third party to these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Marie Claire.

Community trade mark concerned: Word mark ‘MARIE
CLAIRE’ for goods in Class 25 — application No 2 389 567.

Proprietor of the mark or sign cited in the opposition proceed-
ings: Marie Claire Album SA.

C 190/24

EN

Official Journal of the European Union

12.8.2006

Mark or sign cited in opposition: National and international
word and figurative marks ‘MARIE CLAIRE’
for goods and
services in Classes 1, 3, 14, 16, 18, 20-22, 24-28, 41 and 42.

In 2001 the Commission received a complaint denouncing an
abuse of a dominant position on the part of the applicants
preventing the complainant's access to the market.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Opposition Division decision
annulled and opposition upheld.

Pleas in law: Infringement of Article 8(1)(b) and 8(5) of Regu-
lation (EC) No 40/94.

By the contested decision, the Commission concluded that the
applicants infringed Article 82 EC and Article 54 of the EEA
Agreement
in the period 1998-2002 by implementing an
exclusionary strategy in the national reverse vending machines
markets in Austria, Germany, the Netherlands, Norway and
Sweden, involving exclusivity agreements, individualised quan-
tity
rebate
schemes. The Commission imposed on the applicants a fine of
24 million EUR.

commitments

individualised

retroactive

and

Action brought on 14 June 2006 — Tomra Systems and
Others v Commission

(Case T-155/06)

(2006/C 190/43)

Language of the case: English

Parties

In support of their application, the applicants submit that the
Commission:

— used manifestly incorrect and unreliable evidence to prove
that the group designed a strategy to foreclose competition
and implemented that strategy by 49 agreements with its
customers between 1998 and 2002;

— committed manifest errors on its assessment on whether
the agreements were capable of
foreclosing competition
and failure to state reasons, and on whether these agree-
ment actually foreclosed competition;

— committed a manifest error in law by holding exclusivity
agreements, individualised quantity commitments and indi-
vidualised retroactive rebates unlawful per se under Article
82 EC;

Applicants: Tomra Systems ASA (Asker, Norway), Tomra
Europe AS (Asker, Norway), Tomra Systems BV (Apeldoorn,
Netherlands), Tomra Systems GmbH (Hilden, Germany), Tomra
Butikksystemer AS (Asker, Norway), Tomra Systems AB
(Sollentuna, Sweden), Tomra Leergutsysteme GmbH (Vienna,
Austria) (represented by: A. Ryan, Solicitor, J. Midthjell, lawyer)

— committed a manifest error in concluding that non-binding
quantity commitments can infringe Article 82 EC; and

— breached the principles of proportionality and non-discrimi-
nation when it imposed the EUR 24 million fine on the
applicants.

Defendant: Commission of the European Communities

Form of order sought

— Annul

Commission Decision

COMP/E-1/38.113 —

Prokent/Tomra of 29 March 2006 in its entirety; and

— order the defendant to pay the costs of the proceedings,
including the costs incurred by the applicants to post a
bank guarantee for its obligation to pay the fine.

— In the alternative, annul or reduce substantially the amount
of the fine imposed by Article 2 of the abovementioned
decision; and

— order the defendant to pay the costs of the proceedings,
including the costs incurred by the applicants to post a
bank guarantee for its obligation to pay the fine.

Action brought on 9 June 2006 — Italian Republic v
Commission

(Case T-157/06)

(2006/C 190/44)

Language of the case: Italian

Pleas in law and main arguments

The applicants are part of the Tomra group, which is active in
the area of collecting used beverage containers mainly through
the supply of reverse vending machines (RVMs) and related
products and services.

Applicant: Italian Republic (represented by: Paolo Gentili, Avvo-
cato dello Stato)

Defendant: Commission of the European Communities

Parties