Case T-364/06: Action brought on 6 December 2006 — Xinhui Alida Polythene v Council
Date: 2007-01-27
Institutions: Court of First Instance
Subjects: China, Council of the European Union, Malaysia, Thailand, action for annulment (EU), anti-dumping duty, anti-dumping legislation, originating product, packaging product, plastics

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).

27.1.2007

EN

Official Journal of the European Union

C 20/29

The applicant contends that the Council has infringed essential
procedural requirements and misused its powers by adopting
the contested regulation without properly considering the
underlying proceedings conducted by the Commission.

According to the applicant, the Commission i) did not properly
examine the standing of the complainants and/or failed to make
a proper determination of their standing, ii) considered irrele-
vant information and/or failed to take available information into
account, iii) made an inadequate assessment of the injury to the
relevant Community industry, iv) failed to establish that there
was a Community interest in imposing duties on imports, and
v) infringed the applicant's rights of defence.

The applicant alleges that this amounts to an abuse of powers.

and flora, (1) in so far as it includes some areas of the appel-
lant's property in SCI ES 6110006 which lack the necessary
environmental requirements; and

— arbitrary, in that it has excluded, in that same zone, areas
which have the required environmental values which call for
classification as a SCI.

(1) OJ L 206, 22.7.1992, p. 7

(1) OJ 2006 L 270, p. 4.

Action brought on 4 December 2006 — Kuwait Petroleum
Corp. and others v Commission

Action brought on 4 December 2006 — Calebus v
Commission

(Case T-366/06)

(2007/C 20/44)

Language of the case: Spanish

(Case T-370/06)

(2007/C 20/45)

Language of the case: English

Parties

Applicants: Kuwait Petroleum Corp. (Shuwaikh, Kuwait), Kuwait
Petroleum International Ltd (Woking, United Kingdom), and
Kuwait Petroleum (Nederland) BV (Rotterdam, The Netherlands)
(represented by: D.W. Hull, Dr. G. M. Berrisch, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant: Calebus, S.A.
Bocanegra Sierra, lawyer)

(Almería, Spain)

(represented by: R.

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annul Commission Decision 2006/613/EC of 19 July 2006
(OJ 2006 L 259, p.1) approving the list of sites of Com-
munity importance for the Mediterranean biogeographical
region, in relation to the inclusion of the farm ‘Las Cuerdas’
as a SCI ‘ES6110006 Ramblas de Gergal, Tabernas y Sur de
Sierra Alhamilla’, appearing on that
the
Commission to change the delimitation of that SCI so as to
exclude the farm referred to.

list, and order

Pleas in law and main arguments

In support of its claims, the applicant submits that the contested
decision is:

— contrary to Council Directive 92/43/EEC of 21 May 1992
on the conservation of natural habitats and of wild fauna

— Annul Commission's Decision C(2006)4090

13
September 2006 insofar as it applies to the applicants; in
the alternative

of

— reduce the amount of the fine imposed;

— in any event, order the Commission to bear the costs of

these proceedings.

Pleas in law and main arguments

By a decision adopted on 13 September 2006 (the ‘contested
decision’), the Commission imposed on Kuwait Petroleum Corp.
(‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait
Petroleum (Nederland) BV (‘KPN’), the applicants,
jointly and
severally, a fine of EUR 16.632 million for infringing Article 81
EC by fixing prices in the Dutch bitumen market. Each of the
applicants hereby seeks the annulment of the contested decision
or, in the alternative, a reduction of the fine on the following
grounds: