Case T-212/06: Action brought on 11 August 2006 — Bowland Dairy Products v Commission
Date: 2006-09-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), cheese, dissemination of information, food safety, foodstuff, marketing

C 237/10

EN

Official Journal of the European Union

30.9.2006

— considers that,

in spite of its pan-European objective
and its economic strength, E.ON was not a significant
potential competitor of ENDESA in the Spanish markets
for electricity generation and the supply of gas,

— concludes that the transaction will not strengthen a
dominant position in the German market and that the
disappearance of a recent entrant, ENDESA, does not
alter the competitive context.

Finally the applicant claims that there has been a breach of the
duty to state the reasons on which measures are based.

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark.

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

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No
40/94 (1), since it is not established that there is a likelihood of
confusion between the conflicting trade marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 31 July 2006 — NewSoft Technology v
OHIM — Soft (Presto! BizCard Reader)

(Case T-205/06)

(2006/C 237/18)

Language in which the application was lodged: German

Action brought on 11 August 2006 — Bowland Dairy
Products v Commission

(Case T-212/06)

(2006/C 237/19)

Language of the case: English

Parties

Applicant: NewSoft Technology Corporation (Taipei, Taiwan)
(represented by: M. Dirksen-Schwanenland, lawyer)

Parties

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

Applicant: Bowland Dairy Products Limited (Nelson, United
Kingdom) (represented by: J. Milligan, Solicitor)

Other party/parties to the proceedings before the Board of Appeal of
OHIM: Soft, S.A.

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the decision of the Second Board of Appeal
of the Office for Harmonisation in the Internal Market of
19 May in Case R 601/2005, notified on 30 May 2006;

— Rejection of the application for a declaration of invalidity of
the registration of European Community trade mark No
002625457 ‘Presto! BizCard Reader’ made by Soft, S.A.,
Spain.

Form of order sought

— Annulment of the contested decision;

— order the Commission to pay damages to the applicant in
the amount of the loss suffered by the applicant as a result
of the contested decision, with interest;

— order the Commission to pay the applicant's costs of these

proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: ‘Presto! BizCard Reader’ for goods and
services in Classes 9, 16 and 42 (Community trade mark No
2625457).

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: SOFT, S.A.

Trade mark right of applicant for the declaration: Spanish figurative
marks ‘Presto’ for goods and services in Classes 9 and 42.

By means of its application, the applicant seeks annulment of a
decision of
the Commission of the European Communities
contained in an email to the UK Foods Agency dated 20 July
2006, forwarded to the applicant on 21 July 2006, refusing to
circulate, under the Rapid Alert System for Food and Feed
provided for by Regulation (EC) No 178/2002 of the European
Parliament and of the Council of 28 January 2002 (OJ L 31 of
1 February 2002, p. 1-24), an additional notification declaring
that the Food Security Agency (FSA) was content for the appli-
cant's curd cheese to be marketed, unless conditions specified
by the Commission were met.

30.9.2006

EN

Official Journal of the European Union

C 237/11

The applicant claims that the Commission was not entitled to
impose conditions upon the circulation of an additional Notice
prepared by a national competent authority under Article 50 of
Regulation (EC) No 178/2002.

and confidential market and/or company relevant information
and participating in regular meetings and other contacts to
facilitate the infringement.

the applicant submits that

Moreover,
in formulating these
conditions, the Commission has misinterpreted the applicable
Regulations both in relation to antibiotic milk as in relation to
watery milk.

Action brought on 17 August 2006 — Imperial Chemical
Industries v Commission

(Case T-214/06)

(2006/C 237/20)

Language of the case: English

Parties

Imperial Chemical

(London,
Applicant:
United Kingdom) (represented by: D. Anderson, QC, H. Rosen-
blatt, B. Lebrun, lawyers, W. Turner and S. Berwick, Solicitors)

Industries plc (ICI)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 2(c) of the contested decision; or in the alter-

native

— amend Article 2(c) of the contested decision so as to reduce

the fine imposed on ICI; and

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks 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 applicant had infringed Article 81 EC and Article 53 of the
Agreement on the European Economic Area by participating in
a methacrylates cartel which consisted of discussing prices,
implementing and monitoring price agreements
agreeing,
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

Firstly, the applicant submits that the Commission did not
satisfy its burden of proof under Article 2 of Council Regu-
lation No 1/2003 (1) for an infringement in relation to poly-
methyl methacrylate moulding compounds as it based its find-
ings of the applicant's cartel activity on certain parts of immu-
nity and leniency applications which were, to the extent that
they relate to polymethyl methacrylate moulding compounds
and to the applicant's period of ownership of the acrylics busi-
ness, not supported by any relevant evidence and which were
moreover conflicting with one another on important aspects.
The applicant argues that such material does not satisfy the
Commission's obligation to establish findings of an infringe-
ment with substantial and reliable evidence.

Secondly, the applicant claims that the Commission failed to
reason the amount of the fine when calculating the gravity
element hereof contrary to Article 253 EC.

Thirdly, the applicant alleges that the Commission committed
an error of law by incorrectly treating the applicant and the
company Lucite as competitors rather than consecutive partici-
pants in the alleged infringement whereby the impact on
competition was counted double. This resulted in a larger
aggregated fine for the applicant and Lucite merely because the
business changed hands.

Fourthly, the applicant asserts that the Commission applied an
incorrect standard for imposing an uplift for deterrence by
relying solely on the applicant's turnover and not considering
evidence of the applicant's economic capacity. Moreover, the
applicant finds the deterrence uplift disproportionate with that
imposed on another party in the cartel.

Fifthly, the applicant contends that the Commission improperly
denied the applicant
for cooperation
outside the Leniency Notice (2). According to the applicant, the
material it voluntarily submitted to the Commission constitutes
the requisite significant added value under the Leniency Notice.

leniency and credit

(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).

(2) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002 C 45, p. 3)