Case T-143/07: Action brought on 30 April 2007 — UMG Recordings/OHMI — Osman (MOTOWN)
Date: 2007-06-23
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United States, action for annulment (EU), audiovisual production, record, trade-mark law

23.6.2007

EN

Official Journal of the European Union

C 140/41

— in the alternative, annul or reduce, on the basis of Article

Form of order sought

229 EC, the fine imposed on it by that decision;

— order the Commission to pay all the costs.

The applicant petitions the Court:

Pleas in law and main arguments

By this action, the applicant is seeking the partial annulment of
Commission decision C(2007)512 final of 21 February 2007
relating to a proceeding under Article 81 EC and Article 53
EEA (Case COMP/E-1/38.823 — PO/Elevators and Escalators),
concerning a cartel on the market for the installation and main-
tenance of
lifts and escalators in Belgium, Germany, Luxem-
bourg and the Netherlands, and relating to the manipulation of
calls for
the award of
projects and sales contracts, the installation, maintenance and
modernisation of machinery and the exchange of information,
in so far as it concerns the applicant. In the alternative, the
applicant seeks the annulment or reduction of the fine imposed
on it by the contested decision.

tenders, market-sharing, price-fixing,

In support of its action, the applicant submits that the Commis-
sion was wrong to find it
jointly and severally liable for
payment of the fine imposed on its subsidiary, a member of the
cartel. It claims that the Commission was mistaken about the
nature and extent of its shareholding in the share capital of its
subsidiary in so far as the applicant
is a purely financial
company which does not carry out any trade of its own and
that its shareholding in the subsidiary is a minority shareholding
which does not exceed what is necessary for the protection of
the
its financial
Commission has not stated to the requisite legal standard its
reasons for finding that the applicant was involved in the cartel
in question, in contrast to the personal role played by its share-
holder, in his capacity as managing associate of the subsidiary.

interests. The applicant maintains also that

Action brought on 30 April 2007 — UMG Recordings/
OHMI — Osman (MOTOWN)

(Case T-143/07)

(2007/C 140/67)

Language in which the application was lodged: English

Parties

Applicant: UMG Recordings, Inc. (Santa Monica, USA) (repre-
sented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, lawyers)

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

Other party/parties to the proceedings before the Board of Appeal:
Jimmy Osman (London, United Kingdom)

— to admit its brief and documents appended thereto and
consider an appeal to have been filed in good time and due
order against the decision issued by OHIM's Second Board
of Appeal on 15 February 2007 in Case R-523/2006-2 and
following completion of appropriate procedural steps, to
render judgment in due course overturning that decision
and expressly ordering OHIM to pay the costs of
the
proceedings.

Pleas in law and main arguments

Registered Community trade mark subject of the application for revoca-
tion: the word Community trade mark ‘MOTOWN’ for goods
and services in Classes 9, 25, 41 and 42 — application No 206
243

Proprietor of the Community trade mark: UMG Recordings

Party requesting the revocation of the Community trade mark: Jimmy
Osman

Decision of
the Cancellation Division: Upheld the revocation
request for all contested services in Class 42 and rejected it
insofar as it was directed against services in Class 41

Decision of the Board of Appeal: Upheld the appeal
Jimmy Osman

lodged by

Pleas in law: Infringement of Articles 15(1) and 50(1) of Council
Regulation (EC) No 40/94.

The applicant claims that the Board allegedly erred in its assess-
ment of evidence submitted to prove the use of its mark with
regards to the contested services in Class 41.

First, the applicant submits that the Board failed to consider that
the contested mark was the subject of acts of use for the
contested services by both the registered proprietor and third
parties with the proprietor's consent.

Secondly, according to the applicant
the Board confused
‘discotheques services’ with ‘the organisation of musical events’
while it did not take into account that they fell into different
categories of services.

services’ and/or

Thirdly, the applicant contends that, even assuming that it did
not participate either directly or indirectly in the provision of
‘discotheques
the ‘organisation of musical
it should have been held that it did render specific
events’
services falling within the aforementioned categories and that
the provision of those ‘sub-services’ served to overcome the
obligation to use its mark for so-called general categories of
services (namely, the contested services).