Case T-58/07: Action brought on 23 February 2007 — BYK-Chemie v OHIM — (Substance for Success)
Date: 2007-04-28
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), chemical product, trade-mark law

C 95/48

EN

Official Journal of the European Union

28.4.2007

Action brought on 23 February 2007 — BYK-Chemie v
OHIM — (Substance for Success)

— annul the decision, in whole or in part, with all the conse-

quences entailed for the amount of the penalty;

(Case T-58/07)

(2007/C 95/96)

Language of the case: German

Parties

Applicant: BYK-Chemie
J. Kroher and A. Hettenkofer, lawyers)

(Wesel, Germany)

(represented by:

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

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
defendant of 9 January 2007 in Case R0816/2006-04;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Substance for
success’ for goods and services in Classes 1, 40-42 (Application
No 3 660 552).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Breach of Article 7(1)(b) and (c) of Council Regu-
lation No 40/94 (1) as the registered trade mark is neither
devoid of
is to be
the necessary distinctive character nor
reserved for use in trade.

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

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

Action brought on 20 February 2007 — Polimeri Europa v
Commission

(Case T-59/07)

(2007/C 95/97)

Language of the case: Italian

Parties

Applicant: Polimeri Europa SpA (Brindisi, Italy) (represented by:
M. Siragusa and F.M. Moretti, avvocati)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should

— in the alternative, annul or reduce the penalty;

— in any case, order the Commission to pay the costs, fees and

expenses.

Pleas in law and main arguments

in Case
final
By decision of 29 November 2006 (C(2006)
(BR) and Emulsion
COMP/F/38.638 — Butadiene Rubber
Styrene Butadiene Rubber (ESBR);
‘the Decision’), the Commis-
sion declared that Polimeri Europa, together with other under-
takings, has infringed Article 81 EC and Article 53 of
the
Agreement on the European Economic Area by agreeing price
targets for BR/ESBR products, sharing customers through non-
aggression pacts and exchanging sensitive commercial informa-
tion.

In support of
its action challenging that measure, Polimeri
Europa alleges serious breaches of procedure and infringement
of its rights of defence. In particular, the applicant notes the
following conduct on the part of the Commission: (i) its use of
incorrect rules in applying the Leniency Notice; (ii) its unjusti-
fied and inexplicable adoption of a second statement of objec-
tions, thereby distorting the role of such a statement; (iii) its
attribution to Polimeri Europa — first stated in the Decision —
of sole liability for facts relating to a period during which
Syndial SpA, not Polimeri Europa, had been managing the busi-
ness; (iv) its introduction in the Decision of an assessment of
the market that was new and different as compared with the
assessment previously used.

The applicant also alleges that the Decision is flawed by the
following substantive defects: (i) lack of a proper preliminary
investigation, coupled with an insufficient and contradictory
statement of reasons, as regards the definition of the relevant
market, in that the Commission carried out a joint evaluation of
the BR/ESBR sectors — without, however, taking natural rubber
into account — and assessed the market unfairly; (ii) erroneous
attribution to Polimeri Europa of liability for facts relating to a
period during which another company (not Polimeri Europa)
was managing the products in question; (iii) lack of a proper
preliminary investigation, coupled with an insufficient and
contradictory statement of reasons, as regards the assessment of
the facts; (iv) lack of a proper preliminary investigation, coupled
with an insufficient and contradictory statement of reasons, as
regards the evidence for a hypothetical unlawful act on the BR
market.

Lastly, the applicant alleges that the penalty imposed on it is
unlawful for the following reasons: (i) breach of the obligation
to evaluate the true impact of the infringement; (ii) failure prop-
erly to state reasons and breach of the principles of equal treat-
the
ment and proportionality as regards the application of
multiplier for the purposes of deterrence; (iii) erroneous calcula-
tion of the duration of the infringement in the light of the
evidence available; (iv) faulty reasoning and breach of the princi-
ples of legal certainty and proportionality as regards application
of the repeat offender mechanism; (v) failure to apply the miti-
gating factor consisting in non-implementation of the alleged
agreements and concerted practices.