Case T-439/07: Action brought on 4 December 2007 — Coats Holdings v Commission
Date: 2007-12-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, price agreement, restrictive trade practice

C 37/26

EN

Official Journal of the European Union

9.2.2008

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘NEW LOOK’
for goods and services in classes 3, 9, 14, 16, 18, 25, 26 and
35 — application No 2 932 606

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(3) of Council Regulation
No 40/94, as the Board of Appeal i) erred in requiring the appli-
cant to demonstrate acquired distinctive character in a Member
State other than the United Kingdom and Ireland; ii) erred in
holding that the applicant's evidence of use of ‘NEW LOOK’ in
stylised form or together with a distinctive device was incapable
of imbuing the mark with distinctive character; and iii) failed to
place sufficient overall weight on the applicant's evidence of use
in the United Kingdom and Ireland.

Action brought on 30 November 2007 — Spa Monopole v
OHIM — De Francesco Import (SpagO)

(Case T-438/07)

(2008/C 37/41)

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or sign cited: The Community, national and international
word and figurative marks ‘SPA’, ‘SPA Citron’ and ‘SPA Orange’
for goods in class 32

Decision of
entirety

the Opposition Division: Opposition upheld in its

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation
No 40/94, as the Board of Appeal underestimated the reputa-
tion of SPA in the Benelux and did not take the following
factors sufficiently into account:

— the oral and visual similarities of the trade marks in ques-

tion;

— the fact that the use of the trade mark ‘SpagO’ for alcoholic
beverages would be detrimental to the reputation of the
mineral water ‘SPA’, which built its reputation on its high
quality, purity and beneficial effects upon health;

— the fact that the use of ‘SpagO’ for beverages would take
unfair advantage of the reputation of the trade mark ‘SPA’
and its image of quality and purity.

Language in which the application was lodged: English

Action brought on 4 December 2007 — Coats Holdings v
Commission

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV
(Spa, Belgium) (represented by: L. de Brouwer, E. Cornu, E. De
Gryse and D. Moreau, lawyers)

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

(Case T-439/07)

(2008/C 37/42)

Language of the case: English

Other party
De Francesco Import GmbH (Nürnberg, Germany)

to the proceedings before

the Board of Appeal:

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office of 13 September 2007 in Case R 1285/2006-2 and

Parties

Applicant: Coats Holdings Ltd (represented by: W. Sibree and C.
Jeffs, Solicitors)

Defendant: Commission of the European Communities

— order the Office to bear the costs.

Form of order sought

Pleas in law and main arguments

— Annul Articles 1(4) and 2(4) of the decision insofar as they

relate to Coats;

Applicant
GmbH

for the Community trade mark: De Francesco Import

— in the alternative, annul or reduce the fine imposed on

Coats by Article 2(4) of the decision; and

Community trade mark concerned: The word mark ‘SpagO’
goods in class 33 — application No 2 320 844

for

— order the Commission to bear its own costs and those

incurred by Coats.

9.2.2008

EN

Official Journal of the European Union

C 37/27

Pleas in law and main arguments

Form of order sought

of

the

seeks

applicant

annulment

Commission
The
Decision C(2007) 4257 final of 19 September 2007 in Case
COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by
which the Commission found that the applicant, together with
other undertakings, had infringed Article 81 EC by among
fixing minimum prices
others exchanging price information,
and sharing markets.

— To declare in accordance with Article 232 EC that

the
Commission has failed to act pursuant to its obligations
under the EC Treaty by not having defined a position with
respect
lodged with the
Commission on 3 November 2005 followed by a letter of
formal notice of 2 August 2007;

to the applicant's complaint

In support of its application, the applicant submits that the
Commission's assessment of the evidence as a whole is vitiated
by manifest errors of assessment. According to the applicant the
Commission failed to prove to the requisite standard that the
applicant was a party to a bilateral market-sharing agreement
with Prym between January 1977 and July 1998.

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible; and

In the alternative, the applicant submits that the Commission
failed to prove that any infringement continued beyond
19 September 1997 or failed to prove a single continuous
for the period to 15 July 1998 entitling the
infringement
Commission to fine the applicant for an infringement lasting 21
½ years.

The applicant further, alternatively, claims that the Commission
infringed the applicant's fundamental procedural rights under
Article 6(3)(d) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms to examine or have
examined witnesses against
in proceedings of a criminal
nature.

it

Finally, the applicant alleges, in the alternative, that the Commis-
sion erred in mechanically applying a multiplier of 215 % to
the basic amount of the fine for a duration of 21 ½ years,
rather than exercising its discretion under the applicable fining
guidelines.

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

priate.

Pleas in law and main arguments

It is submitted as the main plea, that the Commission has failed
the
to conduct a diligent and impartial examination of
complaint
lodged by the applicant, alleging the grant of
unlawful aid in the form of advantages conferred by the Italian
State to Volare, through the write-off of around EUR 20 million
in debts owned by Volare to Italian airports and reductions in
airport charges and fuel costs. Alternatively, as a subsidiary plea,
the applicant submits that the Commission failed to define its
position on the applicant's complaint alleging anticompetitive
discrimination and, hence, an infringement of Article 82 EC.

Action brought on 29 November 2007 — Ryanair v
Commission

(Case T-441/07)

(2008/C 37/43)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

the Court

found that

The applicant claims that the measures that are subject to its
complaint constitute State aid, fulfilling all conditions set out in
Article 87(1) EC. Furthermore, the applicant contends that, in
the advantages
the event
conferred to Volare were not attributable to the State, because
Italian airports might have determined their charges in an
autonomous manner, the applicant submits that such advan-
tages would amount to anticompetitive discrimination which
infringes
cannot be justified by objective reasons and hence,
Article 82 EC.

some of

The applicant further submits that the Commission was under
an obligation,
in accordance with the provisions of Council
Regulation (EC) No 1/2003 (1) and Commission Regulation (EC)
No 773/2004 (2), to carefully examine the evidence of fact and
of law brought to its notice by the complainant in order to
decide, within a reasonable time, whether it should initiate
proceedings to establish the breach or reject the complaint. The
Commission did not take any decision following receipt of the
complaint, confirming the breach or dismissing the complaint
after having informed the applicant pursuant to Article 7 of
Regulation (EC) No 773/2004, or, finally, issue a fully reasoned
decision not to pursue the complaint due to lack of Community
interest.