Case T-77/08: Action brought on 18 February 2008 — Dow Chemical 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

C 116/22

EN

Official Journal of the European Union

9.5.2008

Decision of the Opposition Division: Opposition upheld for all the
goods and services in classes 9, 38 and 41, as well as for ‘adver-
tising’ in class 35

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the opposition in its entirety

the
in law: Without contesting the operative part of
Pleas
contested decision, the applicant contends that the reasoning of
the Board of Appeal infringes Council Regulation No 40/94 and
the rules of law relating to its application.

Action brought on 15 February 2008 — E.I. du Pont de
Nemours and Others v Commission

(Case T-76/08)

(2008/C 116/40)

Language of the case: English

Parties

In support of their application, the applicants submit that the
Commission committed manifest errors of assessment of the
facts, erred in law and failed to provide adequate reasoning for
its decision:

— in holding the applicant E.I. DuPont liable for the involve-
ment of the joint venture DuPont Dow Elastomers in the
cartel for the period after the applicant E.I. DuPont had
transferred its entire elastomers business, including chloro-
prene rubber, to DuPont Dow Elastomers;

— in imposing a fine on E.I. DuPont for the period prior to the
transfer of its elastomer activities to DuPont Dow Elasto-
mers, when the Commission was in fact time-barred from
doing so;

— in not having demonstrated a legitimate interest in issuing a

decision against E.I. DuPont in this case;

— in not having shown that Bayer and DuPont Dow Elastomers
had reached an agreement or an understanding over the
closures of plants;

— in using a multiplier for duration of 6.5 equating six years
and six full months, when the duration of the involvement
of DuPont Dow Elastomers was only of six years and one
full month;

— in not granting the applicants the maximum available

leniency reduction of 30 %; and

— in finding that an employee of DuPont Dow Elastomers

participated in the cartel.

States), DuPont

Applicants: E.I. du Pont de Nemours and Company (Wilmington,
United
LLC
(Wilmington, United States), DuPont Performance Elastomers
SA (Geneva, Switzerland) (represented by: J. Boyce and A. Lyle-
Smythe, Solicitors)

Performance

Elastomers

Defendant: Commission of the European Communities

Action brought on 18 February 2008 — Dow Chemical v
Commission

Form of order sought

— Annul Article 1(b) of the decision insofar as it finds that E.I.

DuPont was a party to the infringement;

— annul Article 2(b) of the decision insofar as it finds E.I.

DuPont liable to pay a fine;

(Case T-77/08)

(2008/C 116/41)

Language of the case: English

— reduce the fines imposed on the applicants pursuant to

Parties

Article 2(b) of the decision; and

— order the Commission to bear its own costs and those

incurred by the applicants.

Applicant: The Dow Chemical Company (Midland, United States)
(represented by: D. Schroeder and T. Graf, lawyers)

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision
C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629
— Chloroprene Rubber), by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by participating in a single and continuing
agreement and/or concerted practice in the chloroprene rubber
sector.

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision insofar as it relates to the applicant;

— in the alternative, substantially reduce its fine; and

— order the Commission to pay the applicant's legal and other

costs and expenses in relation to this matter.

9.5.2008

EN

Official Journal of the European Union

C 116/23

Pleas in law and main arguments

The applicant seeks partial annulment of Commission Decision
C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629
— Chloroprene Rubber), by which the Commission found that
the applicant, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by participating in a single and continuing
agreement and/or concerted practice in the chloroprene rubber
sector.

In support of its application, the applicant submits that the
Commission committed manifest errors of assessment of the
facts and erred in law in holding the applicant liable for the
infringement of
the joint venture DuPont Dow Elastomers.
According to the applicant, the Commission failed to establish
that the applicant had a decisive influence over DuPont Dow
Elastomers. Furthermore, the applicant contends that it did not
form a single economic unit with DuPont Dow Elastomers.

Moreover, the applicant alleges that the Commission committed
a manifest error of assessment of the facts, erred in law and
failed to provide adequate reasoning for its decision:

— in using a multiplier for duration of 6.5 even though the
duration of the infringement was only six years and one
month;

— confirm the OHIM Opposition Division's decision dated
12 January 2006, ruling on opposition No B 675 803, as
far as it allows application No 3 104 155 COMIT to
proceed to registration for classes 35, 36, 41 and 42;

— alter

the OHIM Opposition Division's decision dated
12 January 2006, ruling on opposition No B 675 803, as
far as it accepts opposition No B 675 803, in part, for the
goods in class 16;

— as a consequence, reject opposition No B 675 803 in its
entirety and allow application No 3 104 155 COMIT to
proceed to registration for all the goods and services of
classes 16, 35, 36, 41 and 42;

— order

the defendants to bear

the present
proceeding, as well as those of the OHIM opposition and
appeal proceedings.

the costs of

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘COMIT’ for
goods and services in classes 16, 35, 36, 41 and 42 — applica-
tion No 3 104 155

— in increasing the fine to be imposed on the applicant by

10 % for sufficient deterrent effect; and

Proprietor of the mark or sign cited in the opposition proceedings: MIP
Metro Group Intellectual Property GmbH & Co. KG

— in not granting the applicant
leniency reduction of 30 %.

the maximum available

Mark or sign cited: The national
goods and services in classes 9, 16, 35, 36, 41 and 42

figurative mark ‘Comet’

for

Action brought on 18 February 2008 — Intesa Sanpaolo v
OHIM — MIP Metro (COMIT)

(Case T-84/08)

(2008/C 116/42)

Language in which the application was lodged: English

Parties

Applicant: Intesa Sanpaolo SpA (Torino, Italy) (represented by: A.
Perani and P. Pozzi, lawyers)

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

Decision of the Opposition Division: Opposition partially upheld

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and rejection of the trade mark application
in its entirety

Pleas in law: According to the applicant, there is no likelihood of
confusion between the conflicting trade marks.

Action brought on 28 February 2008 — TNC Kazchrome
and ENRC Marketing v Council and Commission

(Case T-107/08)

(2008/C 116/43)

Language of the case: English

Other party to the proceedings before the Board of Appeal: MIP
Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf,
Germany)

Parties

Form of order sought

stock company

Joint
(TNC Kazchrome)

‘Transnational Company
Applicants:
Kazchrome’
(Actobe, Kazakhstan), ENRC
Marketing AG (Kloten, Switzerland) (represented by: L. Ruess-
mann and A. Willems, lawyers)

— Totally alter the decision of the OHIM Fourth Board of
Appeal, Case R 138/2006-4, rendered on 19 December
2007 and notified on 27 December 2007;

Defendants: Council of the European Union and Commission of
the European Communities