Case T-83/08: Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission
Date: 2008-02-19
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, restriction on competition, rubber industry, 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

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