Case T-114/07: Action brought on 13 April 2007 — Last Minute Network v OHIM — Last Minute Tour (LAST MINUTE TOUR)
Date: 2007-06-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), provision of services, tourism, trade information, trade-mark law

C 129/22

EN

Official Journal of the European Union

9.6.2007

Action brought on 17 April 2007 — Hitachi and Others v
Commission

(Case T-112/07)

(2007/C 129/38)

Language of the case: English

Parties

Applicants: Hitachi Ltd (Tokyo,
Japan), Hitachi Europe Ltd
(Maidenhead, United Kingdom), Japan AE Power Systems Corp.
(Tokyo, Japan) (represented by: M. Reynolds, P. Mansfield and
D. Arts, laywers)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully request the Court:

— to annul the contested decision in so far as it concerns each

of them;

— as a consequence, to cancel the fines imposed on each of

them;

— in the alternative, to annul Article 2 of the contested deci-
sion in so far as it concerns each of them, or, at least to
cancel or reduce the fines imposed on each of them;

— to order the Commission to pay the costs.

Pleas in law and main arguments

The applicants lodged an action for annulment, under Arti-
cles 225 and 230 EC against Commission decision of 24 January
2007 (Case COMP/F/38.899 — Gas Insulated Switchgear —
C(2006) 6762 final), on the basis of which the Commission
found the applicants, among other undertakings, liable to have
infringed Article 81 EC and Article 53 EEA in the gas insulated
switchgear sector (hereinafter ‘GIS’), through a set of agreements
and concerted practices consisting of (a) market sharing, (b) the
allocation of quotas and maintenance of the respective market
shares, (c) the allocation of individual GIS projects (bid-rigging)
to designated producers and the manipulation of the bidding
procedure for those projects, (d) price fixing, (e) agreements to
cease
and
(f) exchanges of sensitive market information. In the alternative,
the applicants apply, on the basis of Article 31 of Council Regu-
lation (EC) No 1/2003 (1), for cancellation or reduction of the
fines imposed on each of them.

agreements with non-cartel members

licence

First,
it is submitted that the Commission violated the appli-
cant's rights of defence through its failure to grant access to
certain allegedly inculpatory evidence as well as to certain
potentially exculpatory documents.

Second, the applicants claim that the Commission has failed to
prove the existence of an infringement of Article 81(1) EC to
the legal standard required by Article 2 of Regulation 1/2003.
In this respect, the applicants submit in particular that the
Commission has failed to prove the existence of a common
understanding between the European and Japanese undertakings
concerned in the manner alleged in the decision, or that any
common understanding constituted a restrictive agreement and/
or restrictive practice.

Third, the applicants contend that the Commission failed to
prove that the applicants took part in a single and continuous
infringement.

Fourth,
the Commission has allegedly committed manifest
errors in its assessment of the fines imposed on the applicants
by failing to assess the specific weight of the alleged infringe-
ment committed by the applicants.

according to the

the Commission has
Fifth,
committed a manifest error by failing to take into account
factors relating to duration when assessing the applicants' fines.

applicants,

the applicants claim that

the method used by the
Finally,
Commission for assessing the fines with regard to the deterrent
multiplier violates the general Community law principles of
equal treatment and proportionality, both as to the risk that the
applicants could cause any significant damage on the European
market and so as to the non taking into account of recidivism.

(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).

Action brought on 13 April 2007 — Last Minute Network
v OHIM — Last Minute Tour (LAST MINUTE TOUR)

(Case T-114/07)

(2007/C 129/39)

Language in which the application was lodged: English

The grounds on which the applicants rely may be summarised
as follows. The applicants submit that the Commission has brea-
the rights of
ched the fundamental rules on protection of
defence, Article 2 of Regulation 1/2003 and Article 81 EC, as
well as
the general principles of Community law in the
following respects:

Parties

Applicant: Last Minute Network Ltd (London, United Kingdom)
(represented by: P. Brownlow, solicitor)

9.6.2007

EN

Official Journal of the European Union

C 129/23

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

Action brought on 13 April 2007 — Last Minute Network
v OHIM — Last Minute Tour (LAST MINUTE TOUR)

Other party to the proceedings before the Board of Appeal: Last
Minute Tour SpA (Milan, Italy)

Form of order sought

— Quash in its entirety the decision of the Second Board of
Appeal of the respondent, the Office for Harmonisation in
the Internal Market
(Trade Marks and Designs), dated
8 February 2007;

— declare CTM No 1 552 231 invalid in respect of classes 39

and 42;

— award the costs against the respondent.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘LAST MINUTE
TOUR’ for products and services in classes 16, 39 and 42 —
Community trade mark No 1 552 231

(Case T-115/07)

(2007/C 129/40)

Language in which the application was lodged: English

Parties

Applicant: Last Minute Network Ltd (London, United Kingdom)
(represented by: P. Brownlow, solicitor)

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

Other party to the proceedings before the Board of Appeal: Last
Minute Tour SpA (Milan, Italy)

Form of order sought

— Quash in its entirety the decision of the Second Board of
Appeal of the respondent, the Office for Harmonisation in
the Internal Market
(Trade Marks and Designs), dated
8 February 2007;

Proprietor of the Community trade mark: Last Minute Tour SpA

— declare CTM No 1 552 231 invalid in respect of class 16;

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national non-registered word mark ‘LASTMINUTE.COM’ for
services in classes 39 and 42

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark for the services in classes 39 and 42
and rejection of the request for a declaration of invalidity for
the goods in class 16

Decision of the Board of Appeal: Annulment of the Cancellation
Division's decision and rejection of the request for a declaration
of invalidity

Pleas in law: Infringement of Article 8(1)(b) and (4) of Council
Regulation No 40/94 as the Board of Appeal wrongly decided
that the applicant's non registered trade mark did not confer on
him the right to prohibit the use in the United Kingdom of the
trade mark applied for and as the Board of Appeal wrongly
applied the test to establish likelihood of confusion.

— award the costs against the respondent.

Pleas in law and main arguments

the application for a
Registered Community trade mark subject of
declaration of
invalidity: The figurative mark ‘LAST MINUTE
TOUR’ for products and services in classes 16, 39 and 42 —
Community trade mark No 1 552 231

Proprietor of the Community trade mark: Last Minute Tour SpA

Party requesting the declaration of invalidity of the Community trade
mark: The applicant

Trade mark right of the party requesting the declaration of invalidity:
The national non-registered word mark ‘LASTMINUTE.COM’ for
services in classes 39 and 42

Decision of the Cancellation Division: Declaration of invalidity of
the Community trade mark for the services in classes 39 and 42
and rejection of the request for a declaration of invalidity for
the goods in class 16

Decision of the Board of Appeal: Dismissal of the appeal lodged by
the applicant asking the partial annulment of the Cancellation
Division's decision in order to obtain a declaration of invalidity
also for the goods in class 16