Case T-363/06: Action brought on 5 December 2006 — Honda Motor Europe v OHIM — SEAT (MAGIC SEAT)
Date: 2007-01-27
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law, vehicle parts

27.1.2007

EN

Official Journal of the European Union

C 20/27

the Commission assumed, on
According to the claimant,
grounds that are legally and factually flawed, that the claimant
exercised a determining influence on the market conduct of
Ballast Nedam Infra B.V. and Ballast Nedam Grond en Wegen B.
V.

In support of its action, the claimant invokes, in the first place,
a breach of Article 81 EC. Second, the claimant submits that
there has been an infringement of the general principles of
Community law, in particular the principle of the presumption
of innocence. In conclusion, the claimant contends that there
has been a breach of Article 27(1) of Regulation No 1/2003
and of the rights of the defence in that it was not until the deci-
sion that the claimant's liability was assumed. The claimant was
thus not given an opportunity to disprove that view by addu-
cing evidence.

Action brought on 5 December 2006 — Ballast Nedam
Infra v Commission

(Case T-362/06)

(2007/C 20/41)

Language of the case: Dutch

Parties

Claimant: Ballast Nedam Infra B.V. (represented by: A.R. Bosman
and J.M.M. van de Hel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2006) 4090 final of
13 September 2006, notified
claimant on
25 September 2006, relating to a proceeding under Article
81 EC (Case No COMP/38.456 — Bitumen — NL), to the
extent to which that decision is addressed to the claimant;

to the

— in the alternative, set aside Article 2 of the decision, to the
extent to which it is addressed to the claimant, or at least
reduce the fine imposed on it by the said Article 2;

— set aside in part Article 1 of the decision, in so far as it
relates to the duration of the infringement up to October
2000, and consequently reduce the fine imposed in Article
2 of the decision, in so far as the claimant is concerned;

— order the Commission to pay the costs of

the present

proceedings.

81 EC (Case No COMP/38.456 — Bitumen — NL), by which a
fine was imposed on the claimant for breach of Article 81 EC.

In support of its action, the claimant invokes, in the first place,
a breach of Article 81 EC and of Article 23(2) of Regulation
No 1/2003. According to the claimant, the Commission has
failed to adduce any evidence of a single ongoing breach of
Article 81 EC. The claimant submits that the Commission has
adduced no evidence that the bitumen suppliers and the major
road construction companies jointly fixed the gross price for
bitumen and that the major road construction companies had
an interest in concluding those agreements. The claimant argues
that the Commission also erred in classifying as a breach of
Article 81 EC the agreement on the standard rebate and the
desire on the part of the road construction companies to secure
for themselves better conditions than small road construction
companies with a less extensive purchase volume.

Second, the claimant invokes a breach of Article 81 EC and of
Article 23(2) of Regulation No 1/2003 and the Commission's
guidelines on setting fines (1). The claimant argues that
the
Commission incorrectly assessed the gravity of the breach.

Third, the claimant alleges a breach of Article 81 EC in that the
Commission assumed, on grounds that are incorrect in both
factual and legal terms, that the claimant exercised a deter-
mining influence on the market conduct of Ballast Nedam
Grond en Wegen B.V.

The claimant concludes by invoking a breach of Article 27(1) of
Regulation No 1/2003 and of the rights of the defence by
reason of the fact that the Commission deprived the claimant of
the opportunity to challenge a number of new elements in the
decision concerning the claimant's involvement in the alleged
infringement during the period from 21 June 1996 to
1 October 2000 inclusive.

(1) 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).

Action brought on 5 December 2006 — Honda Motor
Europe v OHIM — SEAT (MAGIC SEAT)

(Case T-363/06)

(2007/C 20/42)

Language in which the application was lodged: English

Pleas in law and main arguments

Parties

is challenging the Commission's decision of
The claimant
13 September 2006 relating to a proceeding under Article

Applicant: Honda Motor Europe Ltd (Slough, United Kingdom)
(represented by: S. Malynicz, Barrister, N. Cordell, Solicitor)

C 20/28

EN

Official Journal of the European Union

27.1.2007

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

account the linguistic evidence supplied by the applicant as to
how Spanish consumers were likely to see the words MAGIC
SEAT.

Other party to the proceedings before the Board of Appeal: Seat SA
(Barcelona, Spain)

Form of order sought

— the decision of the first Board of Appeal dated 7 September

2006 in Case R 960/2005-1 shall be annulled;

— the Office and other parties to the procedure shall bear their

own costs and pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned:
the Community word mark
‘MAGIC SEAT’ for goods and services in class 12 — vehicle
seats and vehicle seat mechanisms, parts and fittings and acces-
sories for these goods — application No 2 503 902

Proprietor of the mark or sign cited in the opposition proceedings:
SEAT SA

Mark or sign cited: the national figurative mark ‘SEAT’ for goods
and services in class 12

the applicant claims that

the Board failed to
Furthermore,
appreciate that the category of goods, the features of the rele-
vant market and the attributes of the national consumer for
these goods militated against any finding of a likelihood of
confusion.

Finally, the applicant considers that the Board failed to take into
account whatsoever the applicant's evidence from the trade as
to how products of this sort are marketed.

Action brought on 6 December 2006 — Xinhui Alida Poly-
thene v Council

(Case T-364/06)

(2007/C 20/43)

Language of the case: English

Decision of the Opposition Division: Opposition upheld

Parties

Decision of the Board of Appeal: Dismissal of the appeal

Applicant: Xinhui Alida Polythene Ltd (Xinhui, China)
sented by: C. Munro, Solicitor)

(repre-

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94

Defendant: Council of the European Union

In support of its submissions, the applicant claims that the
Board of Appeal erred in its approach to the visual analysis, in
effect conferring word-only protection on a composite earlier
mark that contained a large and striking device element.

According to the applicant, the Board of Appeal's phonetic
comparison of the marks was allegedly flawed in two respects.
First,
it failed to appreciate that the word MAGIC in MAGIC
SEAT would not be pronounced as a Spanish word and hence
the mark as a whole, MAGIC SEAT, would not be pronounced
in a Spanish way either. Secondly, it failed to take into account
the fact that MAGIC was the first word of the two-word mark,
MAGIC SEAT.

Moreover, the Board of appeal failed to apply the ‘rule of coun-
teraction’ in the current case and therefore failed to take into
account the fact, as part of the conceptual analysis, that the
earlier Spanish mark, comprising the word SEAT and the large
‘S’ badge device element, would be immediately and clearly
understood as designating the Spanish carmaker whereas the
mark MAGIC SEAT would not be understood so.

In addition, on the question of conceptual dissimilarity, the
the Board failed to take into any
applicant contends that

Form of order sought

— Annulment, pursuant to Article 230 of the Treaty of the
European Union, of Council Regulation 1425/2006 of 25
September 2006 imposing a definitive anti-dumping duty
on imports of certain plastic sacks and bags originating in
the People's Republic of China and Thailand, and termi-
nating the proceeding on imports of certain plastic sacks
and bags originating in Malaysia; and

— order the Council to pay the costs of the appellant in the

present proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Council Regulation (EC)
No 1425/2006 of 25 September 2006 imposing a definitive
anti-dumping duty on imports of certain plastic sacks and bags
originating in the People's Republic of China and Thailand, and
terminating the proceeding on imports of certain plastic sacks
and bags originating in Malaysia (1).