Case T-171/06: Action brought on 22 June 2006 — Laytoncrest v OHIM — Erico (TRENTON)
Date: 2006-09-02
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), mechanical engineering, trade-mark law

C 212/32

EN

Official Journal of the European Union

2.9.2006

Pleas in law and main arguments

Form of order sought

the Commission's decision of 22
The applicant contests
February 2006, by which the Commission made binding upon
De Beers a commitment to phase out between 2006 and 2008
and to cease as from 1 January 2009 all direct and indirect
purchases of rough diamonds from the applicant.

— annulment of the decision of 26 April 2006 of the Second

Board of Appeal in Case R-406/2004-2

— referral of the case for a decision on the merits to the

Boards of Appeal of OHIM

In support of its application, the applicant invokes, first, a
violation of its right to be heard in the procedure leading to
the decision. The applicant submits that the Commission was
required to explain which third party observations and what
aspects of the Commission's analysis justified the rejection of
the commitments originally proposed jointly by De Beers and
the applicant and the adoption of
the final commitments
proposed by De Beers.

Second, the applicant invokes a violation of Article 9 of Regu-
lation 1/2003 in that the commitments made binding by the
contested decision were offered only by De Beers, rather than
by the undertakings concerned, namely De Beers and the appli-
cant. The applicant adds that the contested decision has not
been adopted for a specified period.

Finally, the applicant submits that the contested decision's abso-
lute and potentially indefinite prohibition on De Beers'
purchasing rough diamonds directly or indirectly from the
applicant violates Article 82 EC and Article 9 of Regulation
1/2003, as well as the fundamental principles of freedom of
contract and proportionality.

Action brought on 22 June 2006 — Laytoncrest v OHIM
— Erico (TRENTON)

(Case T-171/06)

(2006/C 212/58)

Language in which the application was lodged: Greek

Parties

Applicant: Laytoncrest Limited (London, United Kingdom)
(represented by: Nikolaos K. Dontas, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Erico International Corporation (represented by: Gille Hrabal
Struck Neidlein Prop Roos, Düsseldorf, Germany)

— an order that OHIM and Erico International Corporation, if

it intervenes, pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Laytoncrest

Community trade mark concerned: the word mark TRENTON for
goods in Classes 7, 9 and 11 — Application No 2 298 438

Proprietor of the mark or sign cited in the opposition proceedings:
Erico International Corporation

Mark or sign cited in opposition: word mark LENTON for goods
in Classes 6 and 7

Decision of
Opponent ordered to bear the costs.

the Opposition Division: opposition rejected.

Decision of
the Board of Appeal: appeal and opposition
proceedings closed, by reason of the applicant's implied with-
drawal of the application for registration of the trade mark in
question

Pleas in law: Infringement of Articles 44 and 61(1) of Council
Regulation No 40/94 and Rule 50(1) of Commission imple-
menting Regulation No 2868/95. The applicant claims that in
the contested decision the fact that it did not take part in the
opposition and appeal procedure was wrongly considered to
amount to withdrawal of its application for registration of the
trade mark in question, whereas it states that the Board of
Appeal should, despite the applicant's failure to submit obser-
vations, have continued the procedure and reached a decision
on the merits.

Infringement of the fundamental legal principle of observance
of the rights of the defence and the right to a hearing in
accordance with Article 73 of Regulation No 40/94 and Rule
54 of
to
which the Board of Appeal should have given the applicant an
opportunity to state its position before a decision was given
against it.

implementing Regulation No 2868/95, pursuant

Infringement of Article 74(1) of Regulation No 40/79. The
applicant claims that the Board of Appeal went beyond its
jurisdiction and misused its powers in finding that the applicant
had withdrawn by implication its entire application for registra-
tion.