Case T-81/08: Action brought on 18 February 2008 — Enercon v OHIM (E-ship)
Date: 2008-02-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law, wind energy

C 107/34

EN

Official Journal of the European Union

26.4.2008

Form of order sought

— Order OHIM to pay the costs

— Annul the decision of the Fourth Board of Appeal of the
Internal Market of

for Harmonisation in the
Office
12 December 2007 (Case R 1405/2007-4);

— order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Qiagen GmbH

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘RNAiFect’ for
goods in Classes 1, 5 and 9 (Application No 3 304 813)

Community
depicting
No 5 480 108).

trade mark
tweezers,

for

concerned: Three-dimensional mark
in class 8 (application

goods

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

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Mark or sign cited in opposition: the word mark ‘RNActive’ for
goods in Classes 1 and 5 (Community trade mark No 2 953 768),
albeit that the opposition was brought against registration in
respect of certain goods in Classes 1 and 5

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), as the mark applied for has the requisite distinc-
tive character.

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

(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 19 February 2008 — CureVac v OHIM
— Qiagen (RNAiFect)

(Case T-80/08)

(2008/C 107/57)

Language in which the application was lodged: German

Parties

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1) as there is a likelihood of confusion between the
opposing marks due to the identity of the goods and the simi-
larity of the marks.

(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 18 February 2008 — Enercon v OHIM
(E-ship)

(Case T-81/08)

(2008/C 107/58)

Language in which the application was lodged: German

Applicant: CureVac GmbH (Tübingen, Germany) (represented by:
F. von Stosch, lawyer)

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

Parties

Other party to the proceedings before the Board of Appeal of OHIM:
Qiagen GmbH (Hilden, Germany)

Form of order sought

Applicant: Enercon GmbH (Aurich, Germany)
R. Böhm, lawyer)

(represented by

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

The applicant claims that the Court should:

Form of order sought

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (OHIM) of
11 December 2007 in Case R 1219/2006-1 relating to
Opposition No B 771 495;

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 4 December 2007 (Case R 319/2007-1);

— Refuse registration of Community trade mark No 3 304 813

— order the defendant to pay the costs.

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