Case T-337/07: Action brought on 6 September 2007 — Brilliant Hotelsoftware v OHIM (BRILLIANT)
Date: 2007-11-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United Kingdom, action for annulment (EU), software, trade-mark law

C 269/56

EN

Official Journal of the European Union

10.11.2007

In support of their claims, the applicants submit:

— infringement of the rights of defence, by basing the decision
on various matters of fact which were not communicated
during the administrative procedure and on which the appli-
cants were not given the opportunity to comment;

— that

the Commission committed a number of manifest

errors of assessment relating to:

— the definition of three separate wholesale markets and
not a single market
for access to wholesale ADSL
including both the local loop and national and regional
access, or in the alternative, at least the latter two;

— the presumption that the applicants were dominant both
on the relevant wholesale broadband product markets
and on the retail market;

— the application of Article 82 EC in relation to its alleged
abusive conduct. First,
the Commission applies that
article to the de facto refusal to contract when the whole-
sale products in question do not constitute ‘essential
infrastructure’,
thereby contradicting the case-law in
Oscar Bronner. Secondly, even if Article 82 could be
applied to the applicants' conduct, quod non, the decision
disregards the requirements laid down in the case of
Industrie des Poudres Sphériques according to which,
in
order to make a finding of illegal margin squeeze, it is
necessary to show past evidence of both excessive
pricing of the upstream product and predatory pricing
of the final product;

for

comparison,

and secondly, because

— the alleged abusive conduct and its impact on the
market; first, because it incorrectly selects the wholesale
inputs
it
commits, inter alia, major errors of calculation and omis-
sions both in the application of the ‘period-by-period’
test and the ‘discounted cash flow’ test. These errors,
both individually and collectively, invalidate the metho-
dology and calculations set out in the decision. The deci-
sion also fails to probe sufficiently the alleged negative
impact of the conduct on competition;

— the ultra vires acts of the Commission, which,

in any
event, infringe the principles of subsidiarity, proportion-
ality, legal certainty, loyal cooperation and sound admin-
istration by intervening where the national telecommuni-
cations regulator had already acted, which was set up
under European legislation and which acted in accord-
ance with the powers and competences conferred on it
by that legislation and under a set of rules based on the
Community competition rules;

As regards the annulment or reduction of the fine, the appli-
cants submit that the Commission infringed Articles 15(2) of
Regulation No 17 First Regulation implementing Articles 85
and 86 of the Treaty (now Articles 81 and 82) and 23(2) of of
Council Regulation (EC) No 1/2003 on the implementation of

the competition rules laid down in Articles 81 an 82 of the
Treaty, by considering that the infringement was committed in a
deliberate or seriously negligent manner and by classifying the
infringement as ‘characteristic abuse’.

Action brought on 6 September 2007 — Brilliant
Hotelsoftware v OHIM (BRILLIANT)

(Case T-337/07)

(2007/C 269/101)

Language of the case: German

Parties

Applicant: Brilliant Hotelsoftware Limited (London, United
Kingdom) (represented by J. Croll and C. Pappas, lawyers)

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

Form of order sought

— Annul the Decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (OHIM) of
14 June 2007 and register the trade mark ‘BRILLIANT’ in
the Register of trade marks;

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BRILLIANT’ for
in Classes 9 and 42 (application
goods
No 4 345 849).

and services

Decision of the Examiner: Refusal of the application.

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

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), since the trade mark applied for is not
descriptive and does not lack the necessary distinctive character.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

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