Case T-48/07: Action brought on 21 February 2007 — ratiopharm 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), chemical product, 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.

14.4.2007

EN

Official Journal of the European Union

C 82/51

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BioGeneriX’
goods in Classes 1 and 5 (Application No 2 603 124).

for

Decision of the Examiner: Refusal of part of the application for
registration.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC)
No 40/94 (1), as the trade mark applied for has the requisite
minimum level of distinctiveness and there is no need to
preserve its availability.

of professional ethics and non-performance of contractual
obligations.

2. In that connection, it should be pointed out that contractual
relations with the Commission in the case of humanitarian
aid and actions in the field of development cooperation are
governed by contracts called Grant Agreements, concluded in
accordance with Framework Partnership Agreements (FPAs) and
general contract conditions. In particular, the ECHO FPAs
concerned by the events in relation to which the Commis-
sion intended to impose the contested penalty are the
following:

— FPA No 3-134, signed on 6 November 2003;

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

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

— FPA No CCP 99/0119 of 26 February 1999.

3. In support of its action for annulment of the decision of
1 December 2006, Movimondo puts forward five pleas in
law.

By the first plea, the applicant alleges infringement of provi-
sions of
law in relation to Articles 93, 96 and 114 of
Council Regulation No 1605/2002 on the Financial Regu-
lation applicable to the general budget of
the European
Communities, and raises a plea of illegality in respect of Arti-
cles 133 and 175 of Commission Regulation 2342/2002
laying down detailed rules for the implementation of Council
Regulation No 1605/2002 on the ground that they infringe
Article 183 of Council Regulation No 2988/1995 of
18 December 1995.

By the second plea, the applicant alleges that the Commis-
sion made an erroneous and incomplete assessment of the
factual basis for the allegations against the applicant, and
maintains that there was no conclusive evidence on which to
base the decision imposing a penalty.

By the third plea, the applicant alleges breach of the general
principle of audi alteram partem.

By the fourth plea, the applicant alleges an error of assess-
ment of the facts on which the penalty was based and attri-
bution in relation to the applicant of non-existent circum-
stances. At the same time, it alleges breach of the principle
of proportionality and failure properly to state the grounds
for its decision as regards the ‘effective, proportionate and
dissuasive nature’
required under
Article 114 of Regulation No 1605/2002 (the Financial
Regulation).

the penalty]

[of

as

Lastly, by the fifth plea, the applicant alleges, first, that the
projects constituting a sine qua non for the contested decision
are of wholly indeterminate nature, and that the decision is
time-barred. At the same time, it maintains that there is no
Community act which provides for such a penalty and
alleges infringement of Articles 2(2) and 3(1) of Council
Regulation No 2988/95 of 18 December 1995. Secondly, it
alleges infringement of Articles 175 and 133 of Commission
Regulation No 2342/2002.

Action brought on 14 February 2007 — Movimondo
Onlus v Commission

(Case T-52/07)

(2007/C 82/106)

Language of the case: Italian

Parties

Applicant: Movimondo Onlus (Rome, Italy) (represented by: P.
Vitali, G. Verusio, G.M. Roberti and A. Franchi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul the contested Decision;

— in the alternative, declare, pursuant to Article 241 EC, that
Articles 133 and 175 of Commission Regulation No
2342/2002 of 23 December 2002 are unlawful and inap-
plicable;

— order the Commission to pay the costs.

Pleas in law and main arguments

1. By the present action, the Associazione Movimondo ONLUS
— a non-governmental organisation for international coop-
eration and solidarity — seeks, in accordance with the fourth
paragraph of Article 230 EC, annulment of the Commis-
sion's decision of 1 December 2006 (prot. C (2006) 5802
final) imposing an administrative penalty on the non-govern-
mental organisation (NGO) Movimondo for serious breach