Case T-225/06: Action brought on 26 August 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)
Date: 2006-10-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), beer, trade-mark law

C 261/20

EN

Official Journal of the European Union

28.10.2006

By the third plea, the applicants point out that in its decision
the Commission acted in breach of the unitary nature of the
concept of an undertaking within the meaning of Article 81 EC
and Article 23(2) of Regulation No 1/2003 (1).

In the fourth plea, the applicants claim that the Commission
infringed the rules governing whether breaches committed by a
subsidiary can be imputed to its parent company. The appli-
cants submit that the Commission disregarded the limits of its
power as regards determining imputability by adopting an
interpretation of the case-law relating to imputability which
was incorrect and went against its decision-making practice.
According to the applicants, the Commission also acted in
breach of the principle of the independence of legal persons.

The fifth plea alleges infringement of the essential principles
recognised by all the Member States and which form an inte-
gral part of the Community legal order such as the principle of
non-discrimination, the principle of liability for one's own acts,
the principle of the individual nature of penalties and the prin-
ciple of legality.

In the sixth plea, the applicants submit that the Commission
infringed the principle of good administration.

Action brought on 4 August 2006 — Europig v OHIM
(EUROPIG)

(Case T-207/06)

(2006/C 261/38)

Language in which the application was lodged: French

Parties

Applicant: Europig (Josselin, France) (represented by: D. Masson,
lawyer)

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

Form of order sought

— annul the contested decision of the Board of Appeal of 31

May 2006 (R 1425/2005-4);

— order OHIM to pay the costs in their entirety.

The seventh plea alleges infringement by the Commission of
the principle of legal certainty on the part of the applicants.

Pleas in law and main arguments

By the eighth plea, the applicants contend that the contested
decision constitutes a misuse of powers in that it holds them
liable for the cartel at issue and orders them severally with
their subsidiary to pay the fine.

In their ninth plea, the applicants consider that the Commission
infringed certain fundamental principles that govern the calcu-
lation of fines such as the principle of equal treatment in so far
as it did not apply a reduction of 25 % to the starting amount
of the fine imposed on the applicants, whereas it did apply it to
another undertaking to which the contested decision was
addressed because of a lack of knowledge of the overall infrin-
gement. The applicants also allege infringement of the funda-
mental principles of the presumption of innocence and legal
certainty which result, according to them, from a disregard for
the limits placed on the Commission's power regarding the
taking into account of deterrent effect.

In the alternative, the applicants consider that the fine imposed
on their subsidiary, and for which they are held jointly and
severally liable, should be reduced to a fair level. They seek to
obtain a reduction of 25 % in the starting amount of the fine
because of their lack of knowledge of the infringement and also
to rely on mitigating circumstances in that they were ordered
to pay large fines almost simultaneously in two similar cases.

Community trade mark concerned: Word mark ‘EUROPIG’,
goods in Classes 29 and 30 (Application No 3 816 691)

for

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c), (2) and (3)
of Council Regulation No 40/94. The applicant claims that the
mark applied for is not descriptive of the goods designated, is
fully distinctive and that, in any event, the distinctive character
of the name 'Europig' has been acquired through use.

Action brought on 26 August 2006 — Budějovický
Budvar v OHIM — Anheuser-Busch (BUD)

(Case T-225/06)

(2006/C 261/39)

Language in which the application was lodged: French

(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)

Parties

Applicant: Budějovický Budvar, národní podnik (České Budějo-
vice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)

28.10.2006

EN

Official Journal of the European Union

C 261/21

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

Action brought on 29 August 2006 — REWE-Zentral v
OHIM (Port Louis)

Other party to the proceedings before the Board of Appeal of OHIM:
Anheuser-Busch Incorporated

(Case T-230/06)

(2006/C 261/40)

Language of the case: German

Form of order sought

Parties

— annul

the contested decision of 14 June 2006 of

the

Second Board of Appeal of OHIM;

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by M. Kinkeldey and A. Lehmann, lawyers)

— reject the application for registration of the word mark
‘BUD’ No 1 603 539 to designate goods in Classes 32 and
33;

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

— send the decision of the Court of First Instance to OHIM;

Form of order sought

— order Anheuser-Busch to pay all the costs and expenses.

Pleas in law and main arguments

— annulment of the decision of the First Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 21 June 2006 — Case R 25/2006-1
— with regard to Community trade mark application no.
003 664 133 PORT LOUIS;

— order the defendant to pay the costs.

Applicant for a Community trade mark: Anheuser-Busch Incorpo-
rated

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BUD’ for goods in
Classes 32 and 33 — Application No 1 603 539

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

Mark or sign cited in opposition: Protected designation of origin
‘BUD’ to designate beer

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 62(1) of Regulation No
40/94 (1) and Article 20 of
implementing Regulation No
2868/95 (2) in that the Board of Appeal is not competent to
rule on the validity of the designation of origin invoked by the
applicant in the context of its opposition. It also submits that
the sign ‘BUD’ constitutes a designation of origin, protected in
both France and Austria. The applicant moreover invokes
misapplication of Article 8(4) of Regulation No 40/94 in that,
in its view, the designation of origin ‘BUD’ is indeed a sign
used in the course of trade.

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

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

(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Com-
munity trade mark (OJ 1995 L 303, p. 1)

Community trade mark concerned: The word mark ‘Port Louis’ for
goods in Classes 18, 24 and 25 (application no. 366 4133).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regu-
lation (EC) No 40/94 (1) as the mark for which registration is
sought is capable of registration. Furthermore, the applicant
submits that the right to a fair hearing has been infringed.

(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 30 August 2006 — Kingdom of the
Netherlands v Commission

(Case T-231/06)

(2006/C 261/41)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and D.J.M. de Grave, Agents)

Defendant: Commission of the European Communities