Case T-201/04: Judgment of the Court of First Instance (Grand Chamber) of 17 September 2007 — Microsoft v Commission (Competition — Abuse of dominant position — Client PC operating systems — Work group server operating systems — Streaming media players — Decision finding infringements of Article 82 EC — Refusal of the dominant undertaking to supply and authorise the use of interoperability information — Supply by the dominant undertaking of its client PC operating system conditional on the simultaneous acquisition of its media player — Remedies — Appointment of an independent monitoring trustee — Fine — Determination of the amount — Proportionality)
Date: 2007-11-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition, dominant position, fine, information technology industry, intellectual property, operating system

10.11.2007

EN

Official Journal of the European Union

C 269/45

Re:

Action for annulment of the decision of the Second Board of
Appeal of OHIM of 23 October 2003 (Case R 814/2000-2)
relating
to opposition proceedings between Laboratoires
Goëmar and La Mer Technology, Inc.

Kingdom) (represented by: J. Bourgeois, lawyer); Association for
Competitive Technology, Inc. (Washington, DC, United States)
(represented by: L. Ruessmann and P. Hecker,
lawyers, and
Italy); Mamut
K. Bacon, Barrister); TeamSystem SpA (Pesaro,
ASA (Oslo, Norway) (represented by: G. Berrisch, lawyer); and
Exor AB (Uppsala, Sweden) (represented by: S. Martínez Lage,
H. Brokelmann and R. Allendesalazar Corcho, lawyers)

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders La Mer Technology, Inc., to pay its own costs and those of
the Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM) and Laboratoires Goëmar.

Interveners in support of the defendant: Software & Information
Industry Association (Washington, DC) (represented by: J. Flynn
QC, C. Simpson and T. Vinje, Solicitors, and D. Paemen,
N. Dodoo and M. Dolmans, lawyers); Free Software Foundation
(represented by: C. Piana,
Europe eV (Hamburg, Germany)
lawyer); Audiobanner.com (Los Angeles, California, United
States)
lawyer); and
European Committee for Interoperable Systems (ECIS) (Brussels,
Belgium)
Paemen, N. Dodoo and
M. Dolmans, lawyers, and J. Flynn QC)

(represented by: L. Alvizar Ceballos,

(represented by: D.

(1) OJ C 47, 21.2.2004.

Re:

Judgment of the Court of First Instance (Grand Chamber)
of 17 September 2007 — Microsoft v Commission

(Case T-201/04) (1)

(Competition — Abuse of dominant position — Client PC
operating systems — Work group server operating systems —
Streaming media players — Decision finding infringements of
Article 82 EC — Refusal of the dominant undertaking to
supply and authorise the use of interoperability information
— Supply by the dominant undertaking of its client PC oper-
ating system conditional on the simultaneous acquisition of its
media player — Remedies — Appointment of an independent
monitoring trustee — Fine — Determination of the amount
— Proportionality)

(2007/C 269/80)

Language of the case: English

Parties

Applicant: Microsoft Corp.
States) (represented by: J.-F. Bellis, lawyer, and I. Forrester QC)

(Redmond, Washington, United

Defendants: Commission of the European Communities (repre-
sented initially by: R. Wainwright, F. Castillo de la Torre,
P. Hellström and A. Whelan, Agents, and subsequently by
F. Castillo de la Torre, P. Hellström and A. Whelan)

Inc.

(Oakbrook Terrace,

Interveners in support of the applicant: The Computing Technology
Industry Association,
Illinois, United
States) (represented by: G. van Gerven and T. Franchoo, lawyers,
and B. Kilpatrick, Solicitor); DMDsecure.com BV (Amsterdam,
Netherlands); MPS Broadband AB (Stockholm, Sweden); Pace
Micro Technology plc
(Shipley, West Yorkshire, United
Kingdom); Quantel Ltd (Newbury, Berkshire, United Kingdom);
Tandberg Television Ltd (Southampton, Hampshire, United

of

for

annulment

Application
Commission Decision
2007/53/EC of 24 March 2004 relating to a proceeding
pursuant to Article 82 [EC] and Article 54 of the EEA Agree-
(Case COMP/C-3/37.792 —
ment against Microsoft Corp.
Microsoft) (OJ 2007 L 32, p. 23) or, in the alternative, annul-
ment or reduction of the fine imposed on the applicant in that
decision.

Operative part of the judgment

The Court:

1. Annuls Article 7 of Commission Decision 2007/53/EC of
24 March 2004 relating to a proceeding pursuant to Article 82
[EC] and Article 54 of the EEA Agreement against Microsoft
Corp. (Case COMP/C-3/37.792 — Microsoft), in so far as:

— it orders Microsoft to submit a proposal for the establishment
of a mechanism which is to include a monitoring trustee with
the power to have access, independently of the Commission, to
information, documents, premises and
Microsoft's assistance,
employees and to the source code of
the relevant Microsoft
products;

— it requires that

the proposal
for
that
the establishment of
the costs associated with the
mechanism provide that all
appointment of the monitoring trustee, including his remunera-
tion, be borne by Microsoft; and

— it reserves to the Commission the right to impose by way of
decision a mechanism such as that referred to in the first and
second indents above;

2. Dismisses the remainder of the application;

3. Orders Microsoft to bear 80 % of its own costs and to pay 80 %
of the Commission's costs, with the exception of the costs incurred
by the Commission in connection with the intervention of The
Computing Technology Industry Association, Inc., Association for
Competitive Technology,
Inc., TeamSystem SpA, Mamut ASA,
DMDsecure.com BV, MPS Broadband AB, Pace Micro Technology
plc, Quantel Ltd, Tandberg Television Ltd and Exor AB;

C 269/46

EN

Official Journal of the European Union

10.11.2007

relating to the

interim measures proceedings

4. Orders Microsoft to bear its own costs and to pay the Commission's
in Case
costs
T-201/04 R, with the exception of
the costs incurred by the
Commission in connection with the intervention of The Computing
Technology Industry Association, Association for Competitive Tech-
nology, TeamSystem, Mamut, DMDsecure.com, MPS Broadband,
Pace Micro Technology, Quantel, Tandberg Television and Exor;

5. Orders Microsoft

to pay the costs of Software & Information
Europe,
Industry Association,
Audiobanner.com and European Committee
Interoperable
Systems (ECIS), including those relating to the interim measures
proceedings;

Foundation
for

Software

Free

6. Orders the Commission to bear 20 % of its own costs and to pay
20 % of Microsoft's costs, with the exception of the costs incurred
by Microsoft in connection with the intervention of Software &
Information Industry Association, Free Software Foundation
Europe, Audiobanner.com and ECIS;

7. Orders The Computing Technology Industry Association, Associa-
tion for Competitive Technology, TeamSystem, Mamut, DMDse-
cure.com, MPS Broadband, Pace Micro Technology, Quantel,
Tandberg Television and Exor to bear their own costs,
including
those relating to the interim measures proceedings.

(1) OJ C 179 of 10.7.2004.

Judgment of the Court of First Instance (First Chamber,
Extended Composition) of 17 September 2007 — France v
Commission

(Case T-240/04) (1)

(European Atomic Energy Community — Investments —
Communication to Commission of investment projects —
Procedures — Regulation (Euratom) No 1352/2003 —
Commission's lack of competence — Articles 41 EA to 44 EA
— Principle of legal certainty)

(2007/C 269/81)

Language of the case: French

Parties

Applicant: French Republic (represented initially by: F. Alabrune,
G. de Bergues, C. Lemaire and E. Puisais, then by G. De Bergues
and S. Gasri, agents)

Defendant: Commission of the European Communities (repre-
sented by: M. Patakia)

in support of

Interveners
the applicant: Federal Republic of
Germany (represented by C.-D Quassowski and A. Tiemann,
agents) and Kingdom of Belgium (represented initially by D.
Haven, then by M. Wimmer, and then by A Hubert, agents,
assisted by J.-F. De Bock, lawyer)

Re:

of

Regulation

Commission

Annulment
(Euratom)
No 1352/2003 of 23 July 2003 amending Regulation (EC)
effecting the
No 1209/2000 determining procedures
communications prescribed under Article 41 of
the Treaty
establishing the European Atomic Energy Community (OJ 2003
L 192, p. 15).

for

Operative part of the judgment

The Court:

1. Annuls Commission Regulation (Euratom) No 1352/2003 of
23 July 2003 amending Regulation (EC) No 1209/2000 deter-
mining procedures
for effecting the communications prescribed
under Article 41 of the Treaty establishing the European Atomic
Energy Community;

2. Orders the Commission to pay the costs of the French Republic;

3. Orders the Federal Republic of Germany and the Kingdom of

Belgium to bear their own costs.

(1) OJ C 304 of 13.12.2003 (formerly Case C-455/03).

Judgment of the Court of First Instance of 20 September
2007 — Imagination Technologies v OHIM (PURE
DIGITAL)

(Case T-461/04) (1)

(Community trade mark — Application for the Community
word mark PURE DIGITAL — Absolute grounds for refusal
— Article 7(1)(b) and (c) of Regulation (EC) No 40/94 —
Distinctive character acquired through use — Article 7(3) of
Regulation No 40/94)

(2007/C 269/82)

Language of the case: English

Parties

Imagination

Applicant:
Hertfordshire, United Kingdom)
ough, Barrister, and P. Brownlow and N. Jenkins, Solicitors)

Langley,
(Kings
(represented by: M. Edenbor-

Technologies

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (represented by: D. Schennen initially
and subsequently by D. Botis, acting as Agents)

Re:

the Second
Application for annulment of
Board of Appeal of OHIM of 16 September 2004 (Case
R 108/2004-2), concerning an application for the registration
of the word mark PURE DIGITAL as a Community trade mark

the decision of