Case T-85/08: Action brought on 19 February 2008 — Exalation v OHIM (Vektor-Lycopin)
Date: 2008-02-19
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), credit institution, trade-mark law

C 107/36

EN

Official Journal of the European Union

26.4.2008

Form of order sought

— To annul Articles 1, 2 and 3 of Commission Decision
C(2007) 5910 final of 5 December 2007 in Case
COMP/F/38.629 — Chloroprene Rubber;

— alternatively, to substantially reduce the fine imposed on the

applicants pursuant to Article 2 of that decision;

— order the Commission to pay the costs.

By their fifth plea, the applicants claim that the Commission
made a manifest error of assessment regarding the duration of
the cartel.

Finally, by the sixth plea, it is submitted that the Commission
committed a manifest
and violated
error of
Article 253 EC and the principles of proportionality and equal
treatment in that it failed to reduce the fine imposed on the
applicants on account of mitigating circumstances.

assessment

Pleas in law and main arguments

By means of their application the applicants seek the annulment
of Commission Decision C(2007) 5910 final of 5 December
2007 (Case COMP/F/38.629 — Chloroprene Rubber) relating to
a proceeding under Article 81 EC and Article 53 EEA insofar as
the Commission
infringed
that
Article 81 EC and that it imposed a fine on them requesting
them to bring the alleged infringement to an end immediately.

applicants

found

the

Action brought on 19 February 2008 — Exalation v OHIM
(Vektor-Lycopin)

(Case T-85/08)

(2008/C 107/61)

Language in which the application was lodged: German

In support of their claims, the applicants put forward six pleas
in law:

Parties

On the basis of their first and second pleas, the applicants
submit, first, that the Commission has made a manifest error of
assessment
in finding that the applicants participated in an
infringement of Article 81 EC, since it has neither proved that
the applicants shared a common objective with the other chlor-
oprene producers in order to form a cartel, nor did it prove that
the applicants participated in a concerted practice.

Applicant: Exalation Ltd (Ilford, United Kingdom) (represented by
K. Zingsheim, lawyer)

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

Second, the applicants claim that the Commission infringed
their rights of defence and violated Article 253 EC and the prin-
ciple of sound administration in that it did not provide access to
Bayer's pleadings made during the in camera hearing.

Form of order sought

The applicant claims that the Court should:

On the basis of their third, fourth, fifth and sixth pleas, the
applicants request the Court to reduce significantly the fine
imposed by the Commission on the basis of Article 2 of the
contested decision.

— Annul the decision of the Fourth Board of Appeal of OHIM
of 17 December 2007 in Case R 1037/2007-4 and OHIM's
decision of 4 May 2007 and order OHIM to register the
mark ‘Vektor-Lycopin’ applied for by the applicant as a Com-
munity trade mark in the Community Trade Mark Register;

the applicants submit

the
Namely, by their third plea,
Commission has violated principles of legal certainty and non-
retroactivity by calculating the fine on the basis of the 2006
Fining Guidelines instead of applying the 1998 Fining Guide-
lines.

that

— Order the defendant to pay the costs.

Pleas in law and main arguments

By their fourth plea, the applicants contend that the Commis-
sion made a manifest error of assessment in relation to the
the value of sales in determining the basic
calculation of
amount of the fine. Further, according to the applicants, the
Commission allegedly breached the principle of proportionality
in that the applicants were punished twice.

Community trade mark concerned: The word mark ‘Vektor-Lycopin’
for goods in Classes 5, 29 and 30 (Application No 4 838 983)

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

26.4.2008

EN

Official Journal of the European Union

C 107/37

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), as the mark applied for has sufficient distinc-
tive character and is not descriptive.

arguments for rejecting the Community-wide importance of the
subject-matter of the complaint are misjudged.

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

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

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

Action brought on 22 February 2008 — Global Digital
Disc v Commission

Action brought on 20 February 2008 — KUKA Roboter v
OHIM (colour mark orange)

(Case T-96/08)

(2008/C 107/62)

Language of the case: German

(Case T-97/08)

(2008/C 107/63)

Language in which the application was lodged: German

Parties

Parties

Applicant: KUKA Roboter GmbH (Augsburg, Germany) (repre-
sented by A. Kohn, lawyer)

Applicant: Global Digital Disc GmBH & Co. KG (Dresden,
Germany) (represented by: E. Stein, lawyer)

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

Defendant: Commission of the European Communities

Form of order sought

— Annul

decision
7 December 2007 — Global Digital Disc (GDD) v Philips;

COMP/C-3/38.803

Commission

Form of order sought

The applicant claims that the Court should:

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

Office
for Harmonisation in the
14 December 2007 in Case R 1572/2007-4;

of

— order the defendant to pay the costs.

— Order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Community trade mark concerned: The contourless colour mark
orange for goods in Class 7 (Application No 4 607 801)

The applicant contests Commission decision COMP/C-3/38.803
of 7 December 2007 — Global Digital Disc (GDD) v Philips. In
that decision the Commission dismissed the
applicant's
complaint,
infringements of
Article 82 EC by the party complained of in connection with
that party's licensing practice in the CD-R field, pursuant to
Article 7(2) of Regulation (EC) No 773/2004 (1).

in which it pleaded several

In its grounds of complaint the applicant contends first that the
Commission failed to fulfil
its obligation to give reasons.
Furthermore the defendant infringed the applicant's rights of
defence. Finally the applicant complains that the Commission's

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

— Infringement of Article 28 EC as the contested decision
constitutes a measure having equivalent effect to a quantita-
tive restriction on imports

— Infringement

of Article 7(1)(b)

(EC)
No 40/94 (1), as the mark applied for has distinctive char-
acter

of Regulation