Case T-82/08: Action brought on 12 February 2008 — Guardian Industries and Guardian Europe v Commission
Date: 2008-02-12
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), cartel, fine, glass, sale, unlawful agreement

26.4.2008

EN

Official Journal of the European Union

C 107/35

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘E-ship’ for goods
and services
in classes 7, 9, 12 and 39 (application
No 5 050 539).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

28 November 2007, as notified to them on 3 December 2007,
by which the Commission found that the applicants, among
other
infringed Article 81 EC and
undertakings, had
from 20 April 2004 to
Article 53 EEA by participating,
22 February 2005 in a complex set of agreements and/or
concerted practices coveting the whole of the EEA.

According to the applicants, the contested decision should be
annulled and the fine imposed on them adjusted accordingly,
since it is vitiated by the following grave errors:

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1) on account of an incorrect assessment of the
need for availability and of the distinctive character of the mark
applied for.

(i) the Commission's failure to adduce precise and consistent
evidence that the applicants participated in the cartel oper-
ated by three
the
11 February 2005 meeting;

incumbent glass producers before

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

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

Action brought on 12 February 2008 — Guardian
Industries and Guardian Europe v Commission

(Case T-82/08)

(2008/C 107/59)

Language of the case: English

Parties

(Auburn Hills, United
Applicants: Guardian Industries Corp.
States) and Guardian Europe Sàrl
(Dudelange, Luxembourg)
(represented by: S. Völcker, F. Louis, A. Vallery. C. Eggers and
H.-G. Kamann, lawyers)

Defendant: Commission of the European Communities

(ii) the Commission's unsubstantiated assertion that, at
entered into agreements

meeting,
applicants
the
extended across the EEA.

that
that

In addition, the applicants ask the Court to exercise its unlimited
jurisdiction to further reduce their fine. On this basis they claim,
first, that without reasoning, in a departure from its own consis-
tent position and in a clear violation of the Court's established
case-law, the Commission allegedly excluded one billion euros
of captive sales from the calculation of the other addressees'
fines, thereby vastly overstating the applicants' market position
and, second,
the Commission ignored the applicants'
substantially limited passive role in the infringement compared
long-lasting efforts to cartelise flat
to the other participants'
glass sales in Europe, and their attempts to enlist the applicants
in those efforts.

that

Action brought on 19 February 2008 — Denki Kagaku
Kogyo and Denka Chemicals v Commission

(Case T-83/08)

(2008/C 107/60)

Form of order sought

Language of the case: English

— Partially annul Article 1 of the contested decision in accord-

ance with the pleas outlined in Sections A.1 and A.2;

— reduce the amount of the fine imposed on the applicants;

and

Parties

— order the Commission to bear the costs.

Pleas in law and main arguments

Applicants: Denki Kagaku Kogyo K.K. (Tokyo, Japan) and Denka
Chemicals GmbH (Düsseldorf, Germany) (represented by: G. Van
Gerven, T. Franchoo and D. Fessenko, lawyers)

The applicants seek partial annulment of Commission Decision
No C(2007) 5791 final (Case COMP/39.165 — Flat glass), of

Defendant: Commission of the European Communities