Case T-101/07: Action brought on 26 March 2007 — Dada v OHIM — Dada (DADA)
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Internet, action for annulment (EU), computer systems, provision of services, trade-mark law

9.6.2007

EN

Official Journal of the European Union

C 129/17

Form of order sought

Action brought on 26 March 2007 — Dada v OHIM —
Dada (DADA)

In light of their submissions, the applicants respectfully request
the Court:

— to declare in accordance with Article 232 EC that

the
Commission has failed to act by not having delivered a deci-
sion on the applicants' complaint lodged with the Commis-
sion on 22 April 2004;

— to order the Commission to pay the costs incurred by the

applicants in the proceedings;

Parties

(Case T-101/07)

(2007/C 129/30)

Language in which the application was lodged: Italian

— to take such further action as the Court may deem appro-

priate.

Pleas in law and main arguments

By means of their application, the applicants initiate an action
under Article 232 EC, claiming that the Commission failed to
take a definitive decision on their complaint initially filed on
22 April 2004, followed by an invitation to act,
lodged on
27 November 2006, with regard to an alleged abuse of domi-
nance by Deutsche Post under Article 82 EC.

The applicants sustain that they have a legitimate interest to
bring such a complaint in accordance with the requirement of
Article 7(2) of Council Regulation 1/2003 (1) and are directly
and individually concerned by the Commission's failure to act.
In fact, the applicants claim to be affected by the excessive
pricing of Deutsche Post in the downstream market, both as a
consumer as well as a competitor.

that

to initiate a procedure against

The applicants further submit
in accordance with the
Commission Notice on the handling of complaints under
Article 81 and 82 EC (2), the Commission is required, upon
receipt of a complaint that Article 82 EC has been infringed,
either
the
complaint or
to adopt a definitive decision rejecting the
complaint, after having given the complainant the opportunity
to comment. However, the applicants claim that although they
have submitted their comments on the preliminary rejection of
the complaint within the given time-limit, the Commission did
not take any definitive decision, in breach of Community law.

the subject of

Finally, the applicants contend that, considering the circum-
stances of the case, the period of approximately three years that
has
lapsed during which they have repeatedly urged the
Commission to take action is sufficiently long to enable it to
take a definitive decision. In particular, the period of 18 months
that has lapsed since the applicants submitted their final obser-
vations, is according to the applicants more than reasonable to
enable the Commission to close the third stage of investigation.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25).

(2) OJ C 101, 27.4.2004, p. 65-77.

Applicant: Dada SpA (Florence, Italy) (represented by: D. Caneva
and G. Locurto, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM:
Dada Srl

Form of order sought

— annul the decision of the First Board of Appeal of OHIM of
12 June 2007 in Case R-1342/2005-1, notified to Dada
SpA on 25 June 2007, and consequently allow application
for registration No 1 903 111 lodged by Dada SpA also in
respect of the services referred to in Class 42 of the Nice
Agreement;

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Dada SpA

Community trade mark concerned: Figurative mark composed of
the word DADA reproduced in capital letters on a rectangular
black background surmounted by the image of an atom; regis-
tration No 1 903 111 in respect of services in Class 42.

Proprietor of the mark or sign cited in the opposition proceedings:
DADA Srl

Mark or sign cited in opposition: Italian descriptive mark DADA, in
respect of services in Classes 35, 37, 38 and 42, and the
company name DADA, used in trade and commerce in Italy to
denote the following activities:
‘business management; business
administration; office functions, real-estate affairs, telecommuni-
cations, education, training, legal services, computer program-
ming’.

Decision of the Opposition Division: Opposition upheld and refusal
of the application for registration for the services at issue.

Decision of the Board of Appeal: Contested decision upheld and
dismissal of the appeal.

Pleas in law: Insufficient evidence of use of the national mark
pleaded by the opponent and absence of likelihood of confu-
sion.