Case T-375/06: Action brought on 14 December 2006 — Viega v Commission
Date: 2006-12-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), copper, exchange of information, fine, plumbing equipment, price agreement, restriction on competition, trade information

C 42/26

EN

Official Journal of the European Union

24.2.2007

Mark or sign cited in opposition: The word mark ‘EPIGRAN’
originally registered for goods in Classes 1, 3 and 5 and now
registered only for goods in Class 3 (Community trade mark No
560 292), albeit that the opposition was brought solely against
the registration in Class 5

Decision of the Opposition Division: Opposition granted, partial
refusal to register

Decision of the Board of Appeal: Partial annulment of the decision
of the Opposition Division

Pleas in law: The contested decision infringes Article 8(1)(b) of
Regulation No 40/94 (1) as there is no likelihood of confusion
between the marks in opposition.

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

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Epican’
goods in Classes 5, 30 and 32 (Application No 2 524 510)

for

Proprietor of the mark or sign cited in the opposition proceedings: Dr.
Grandel GmbH

Mark or sign cited in opposition: The word mark ‘EPIGRAN’
originally registered for goods in Classes 1, 3 and 5 and now
registered only for goods in Class 3 (Community trade mark No
560 292), albeit that the opposition was brought solely against
the registration in Class 5

Decision of the Opposition Division: Opposition granted, partial
refusal to register

Decision of the Board of Appeal: Partial annulment of the decision
of the Opposition Division

Pleas in law: The contested decision infringes Article 8(1)(b) of
Regulation No 40/94 (1) as there is no likelihood of confusion
between the marks in opposition.

Action brought on 13 December 2006 — Rath v OHIM —
Grandel (Epican)

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

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

(Case T-374/06)

(2007/C 42/46)

Language in which the application was lodged: German

Parties

Applicant: Matthias Rath (Cape Town, South Africa) (represented
by: S. Ziegler, C. Kleiner and F. Dehn, 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:
Dr. Grandel GmbH

Form of order sought

Action brought on 14 December 2006 — Viega v Commis-
sion

(Case T-375/06)

(2007/C 42/47)

Language of the case: German

Parties

Applicant: Viega GmbH & Co. KG (Attendorn, Germany) (repre-
sented by: J. Burrichter, T. Mäger and F.W. Bulst, lawyers)

Defendant: Commission of the European Communities

The applicant claims that the Court should:

Form of order sought

— set aside the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market
(Trade
Marks and Designs) (OHIM) of 5 October 2006 in so far as
it refuses to allow the Community trade mark application in
respect of the goods in Class 5 ‘food supplements not for
medical purposes, mainly consisting of vitamins, amino
acids, minerals and trace elements; dietetic substances not
adapted for medical use, namely amino acids and trace
elements; the aforesaid goods not for use as antiepileptics’;

— Declare Article 1(1) of the decision void, in so far as it finds
an infringement by the applicant of Article 81(1) EC and
Article 53(1) of the EEA Agreement;

— declare Article 2 of the decision void, in so far as it imposes

a fine of EUR 54.29 million on the applicant;

— in the alternative, make an appropriate reduction in the fine

imposed on the applicant in Article 2 of the decision;

— order OHIM to pay the costs.

— order the defendant to pay the costs.

24.2.2007

EN

Official Journal of the European Union

C 42/27

Pleas in law and main arguments

Action brought on 14 December 2006 — Legris Industries
v Commission of the European Communities

The applicant
is challenging Commission Decision C(2006)
4180 final of 20 September 2006 in Case COMP/F-1/38.121 —
Fittings. In the contested the decision a fine was imposed on the
applicant for breach of Article 81(1) EC and Article 53(1) of the
EEA Agreement. According to the Commission, the applicant
took part in a series of agreements in the form of price-fixing,
establishing price lists and rebates, establishing mechanisms for
the implementation of price increases, dividing up markets and
customers and exchanging other economic information on the
market for copper fittings and copper alloy fittings, from 12
December 1991 until 22 March 2001.

Parties

(Case T-376/06)

(2007/C 42/48)

Language of the case: French

The applicant puts forward four pleas in support of its claim.

Applicant: Legris Industries (Rennes, France) (represented by: A.
Wachsmann and C. Pommiès, lawyers)

It is submitted, first, that the contested decision infringes Article
23(2) of Regulation (EC) No. 1/2003 (1), on the ground that the
defendant infringed fundamental principles in the assessment of
fines by incorrectly determining the applicable turnover. The
defendant, in assessing the severity of the alleged infringement
by the applicant, should have taken into account the turnover
of press fittings when determining the turnover, even though
the applicant did not at any time participate in anti-competitive
practices in respect of press fittings.

Secondly, the applicant submits that the Commission infringed
Article 81(1) EC and Article 253 EC by incorrectly establishing
the participation, and the duration of that participation, in the
conduct of which it is accused. According to the applicant, the
defendant failed to produce substantive evidence in relation to
the applicant and erred in finding that
infringements were
committed.

In addition, the applicant alleges, in the alternative, breach of
Article 81(1) EC and Article 253 EC, on the ground that the
geographic scope of
the
contested decision in relation to the applicant was incorrectly
established.

the infringements in Article 1 of

fines. The applicant submits,

Finally, the applicant alleges that Article 2 of the contested deci-
sion infringes Article 23(2) of Regulation No. 1/2003, on the
ground that the Commission infringed fundamental principles
in the assessment of
in this
connection,
the Guidelines on the method of setting
fines (2) were incorrectly applied in that the Commission classed
the infringement as particularly serious, incorrectly established
the duration of the infringement, incorrectly increased the basic
amount of the fine on account of the duration of the infringe-
ment and failed to assess the mitigating circumstances.

that

(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 2002 L 1, p. 1).

(2) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ 1998 C 9, p. 3).

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission Decision C(2006) 4180 final of
20 September 2006 in Case COMP/F-1/38.121 — Joints,
together with the grounds on which the operative part was
reached, in so far as that decision imposes a fine on the
holding company Legris Industries by reason of the practices
at issue of Comap being imputed to Legris Industries in its
capacity as a holding company;

— allow the holding company Legris Industries to adopt the
sought and claims
forms of order

written pleadings,
submitted by Comap against the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks the partial annulment of
Commission Decision C(2006) 4180 final of 20 September
2006 relating to a proceeding under Article 81 EC (COMP/F-1/
38.121 — Joints), concerning a series of agreements and
concerted practices on the market for copper joints and copper
alloys having as their object price fixing, the drawing up of
price lists and lists of rebates and discounts, the putting in place
of coordination arrangements for price increases, the sharing of
national markets and customers, together with the exchange of
other business information, in so far as that decision imposes a
fine of the holding company Legris Industries by reason of the
practices at issue of its former subsidiary Comap being imputed
to it.

In support of its application, the applicant invokes the following
pleas in law.

First, it argues that the Commission infringed Article 81 EC in
committed by its
imputing to it disputed infringements
in holding it jointly and
subsidiary Comap and, accordingly,
severally liable for those infringements.
the
It submits that
Commission infringed the principle of the legal and commercial
autonomy of
the subsidiary and the principle of personal
responsibility in the field of competition law in considering that
the holding by the applicant of the entire issued share capital of