Case T-446/07: Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx)
Date: 2007-12-07
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), electrical engineering, electrical equipment, trade-mark law

C 37/30

EN

Official Journal of the European Union

9.2.2008

Action brought on 7 December 2007 — Behring & Söhne
v Commission

(Case T-445/07)

(2008/C 37/46)

Language of the case: German

Lastly, the applicant claims that the calculation of the fine is
factually incorrect. In that regard, it alleges in particular that the
findings of the defendant, both as to the length of the purported
infringement by the applicant, and as to the seriousness of the
infringement, are incorrect and that the amount of the fine is
disproportionate.

Parties

Applicant: Behring & Söhne GmbH & Co. KG (Wuppertal,
Germany)
(represented by: P. Niggemann and K. Gaßner,
lawyers)

Defendant: Commission of the European Communities

Action brought on 7 December 2007 — Royal Appliance
International v OHIM — BSH Bosch und Siemens
Hausgeräte (Centrixx)

(Case T-446/07)

(2008/C 37/47)

Form of order sought

Language in which the application was lodged: German

— the annulment of Commission Decision C(2007) 4257 final
of 19 September 2007 (COMP/E-1/39.168 — Haberdashery:
fasteners);

Parties

— in the alternative, the reduction of the fine imposed on the
applicant in the contested decision to a symbolic penalty or
to an amount that is in any event appropriate;

— that the defendant be ordered to pay the costs.

Applicant: Royal Appliance
International GmbH (Hilden,
Germany) (represented by: K.-J. Michaeli and M. Schork, lawyers)

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

Pleas in law and main arguments

Other party to the proceedings before the Board of Appeal of OHIM:
BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany)

The applicant challenges Commission Decision C(2007) 4257
final of 19 September 2007 in Case COMP/E-1/39.168 —
Haberdashery: fasteners. In the contested decision, a fine was
imposed on the applicant and other undertakings for infringe-
ment of Article 81 EC. In the Commission's view, the applicant
participated in the coordination of price increases, together with
the exchange of confidential information as to prices and the
implementation of price increases on the markets for ‘other
fasteners’ and application machines.

Form of order sought

— To annul the decision of the Fourth Board of Appeal of

OHIM of 3 October 2007 in Case R 572/2006-4;

— To order the defendant to pay the applicant's costs and

those of the proceedings.

The applicant relies on four pleas in law in support of its claim.

Pleas in law and main arguments

It submits, first, that the contested decision infringes its right to
a fair hearing, since it had no opportunity to comment on a
series of meetings held in relation to the so-called ‘Basle group’
and the ‘Wuppertal group’, on which the Commission based its
allegations relating to the coordination of price increases and
the exchange of confidential information as to prices and the
implementation of price increases.

Secondly,
it claims that the alleged infringements of the law
relating to cartels have ceased, since the applicant ended its
participation in the ‘Basle group’ and the ‘Wuppertal group’ as
early as the beginning of 1997.

The applicant also maintains that there was no infringement of
Article 81 EC, since the Commission has failed to adduce the
requisite proof of the applicant's participation in any arrange-
ments.

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘Centrixx’ for
goods in Class 7 (application No 3 016 227).

Proprietor of the mark or sign cited in the opposition proceedings: BSH
Bosch und Siemens Hausgeräte GmbH.

Mark or sign cited in opposition: the German word mark ‘sensixx’
for goods in Class 7 (No 30 244 090).

Decision of the Opposition Division: rejection of the opposition.

Decision of the Board of Appeal: annulment of the decision of the
Opposition Division and refusal of the application for registra-
tion of the mark.

9.2.2008

EN

Official Journal of the European Union

C 37/31

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since the Board of Appeal incorrectly applied the
principles of Community case-law concerning the likelihood of
confusion.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

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

Furthermore, the applicant submits that the Commission failed
to prove to the requisite standard that the applicant's subsidiary
participated in the cartel after 1997.

In the alternative, the applicant submits that the Commission:

— committed manifest errors when calculating the fine,

— did not take all relevant circumstances into account when
assessing the duration and the gravity of the infringements;
and

— omitted to assess the attenuating circumstances, such as the

minor role played by the applicant's subsidiary.

Action brought on 5 December 2007 — Scovill Fasteners v
Commission

(Case T-447/07)

(2008/C 37/48)

Language of the case: English

Parties

Applicant: Scovill Fasteners,
(represented by: O. Dugardyn, lawyer)

Inc.

(Clarkesville, United States)

Defendant: Commission of the European Communities

Form of order sought

Action brought on 3 December 2007 — Rotter v OHIM
(EU-BRUZZEL)

(Case T-449/07)

(2008/C 37/49)

Language in which the application was lodged: German

Parties

Applicant: Thomas Rotter (Munich, Germany) (represented by M.
Müller, lawyer)

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

— Annul the Commission's decision of 19 September 2007
relating to a proceeding under Article 81 of the EC Treaty
(Case
COMP/E-1/39.168 — PO/Hard Haberdashery:
Fasteners);

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

applicant;

Form of order sought

— To annul the decision of the Fourth Board of Appeal of
OHIM of 27 September 2007 in Case R 1415/2006-4;

— To order OHIM to pay the costs of

the proceedings

including those incurred during the appeal proceedings.

— order the Commission to bear its own costs and those

incurred by the applicant.

Pleas in law and main arguments

Pleas in law and main arguments

of

the

seeks

applicant

annulment

The
Commission
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's subsidiary,
together with other undertakings, had infringed Article 81 EC
by agreeing on coordinated price increases and exchanging
confidential information on prices and the implementation of
price increases.

In support of its application, the applicant contends that the
Commission erroneously considered that the applicant forms a
single economic entity with its subsidiary and that the applicant
should not be held jointly and severally liable for the payment
of the fine imposed on its subsidiary for the subsidiary's alleged
infringements.

the three-dimensional mark
Community trade mark concerned:
‘EU-BRUZZEL’ for goods and services in Classes 29, 30 and 43
(application No 4 346 185).

Decision of the Examiner: rejection in part of the application.

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

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), since the mark applied for is distinctive in relation
to the contested charcuterie goods.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

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