Case T-47/07: Action brought on 21 February 2007 — ratiopharm GmbH v OHIM (BioGeneriX)
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), pharmaceutical product, trade-mark law

C 82/50

EN

Official Journal of the European Union

14.4.2007

Pleas in law and main arguments

Form of order sought

The applicant seeks the annulment of Commission Decision
C(2006) 5700 final of 29 November 2006 in Case COMP/F/
38.638 — Butadiene Rubber and Emulsion Styrene Butadiene
Rubber, by which the Commission found that the applicant,
together with other undertakings, had infringed Article 81 EC
and Article 53 of the Agreement on the European Economic
Area by agreeing on price targets for the products, sharing
and exchanging
customers by non-aggression agreements
commercial
information relating to prices, competitors and
customers.

for Harmonisation in the

— Annul the decision of the Fourth Board of Appeal of the
Office
Internal Market of
20 December 2006 in appeal No. R1047/2004-4
application No.
concerning Community
001701762.

trade mark

— Order the Office for Harmonisation in the Internal Market

to pay its own costs.

Pleas in law and main arguments

In support of its application, the applicant submits that the
Commission:

Community trade mark concerned: the word mark BioGeneriX for
goods and services in the classes 5, 35, 40 and 42 (Application
No. 1 701 762).

— committed an error of appreciation by rejecting the evidence
that the applicant's holding of all the shares of the company
Kaučuk was of a purely financial nature or, alternatively,
committed a manifest error of appreciation by rejecting
evidence which demonstrated that Kaučuk acted on the
market as an autonomous entity, without any intervention
by the applicant in Kaučuk's sales and marketing policy
concerning emulsion styrene butadiene rubber; and

Decision of the Examiner: Refusal to register.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No. 40/94 (1), on the basis that the trade mark applied for
demonstrates the minimum distinctive character required and
that there is no specific need for availability.

— erred in law by imputing the same conduct twice to different
the

to Kaučuk and to Kaučuk's shareholder,

i.e.

entities,
applicant.

The rest of the pleas in law and main arguments raised by the
applicant are identical or similar
to those raised in Case
T-44/07, Kaučuk v Commission.

Action brought on 21 February 2007 — ratiopharm GmbH
v OHIM (BioGeneriX)

(Case T-47/07)

(2007/C 82/104)

Language of the case: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by
Rechtsanwalt S. Völker)

(1) Council Regulation No. 40/94 of 20 December 1993 on the Com-

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

Action brought on 21 February 2007 — ratiopharm v
OHIM (BioGeneriX)

(Case T-48/07)

(2007/C 82/105)

Language of the case: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by
S. Völker, lawyer)

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

Form of order sought

The applicant claims that the Court should

— annul the decision of the Fourth Board of Appeal of the
(Trade
Office for Harmonisation in the Internal Market
Marks and Designs) of 20 December 2006 in Case R 1048/
2004-4 concerning the application for Community trade
mark No 002603124;

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

— order the Office for Harmonisation in the Internal Market to

pay the costs of the proceedings.