Case T-107/08: Action brought on 28 February 2008 — TNC Kazchrome and ENRC Marketing v Council and Commission
Date: 2008-02-28
Institutions: Court of First Instance
Subjects: European Commission, European Council, action for annulment (EU), anti-dumping duty, anti-dumping measure, export price, manganese, metallurgical industry

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

C 116/24

EN

Official Journal of the European Union

9.5.2008

Form of order sought

Action brought on 27 February 2008 — Zino Davidoff v
OHIM — Clifarm i. Kleinakis & SIA (GOOD LIFE)

— Annul the contested regulation to the extent it imposes anti-
dumping measures on imports of SiMn that is produced
and/or sold by the applicants;

(Case T-108/08)

(2008/C 116/44)

— order the Council and Commission jointly and severally to
pay the applicants damages including interest for harm, that
resulted from the wrongful initiation of the case, errors of
facts, and erroneous assessment, including the Commission's
violations of
fundamental principles of Community law,
and the wrongful adoption of Council Regulation (EC)
No 1420/2007;

Parties

Language in which the application was lodged: English

— order the Commission and Council to bear their own costs

and those incurred by the applicants;

— order the Commission to bear its own costs and jointly and
severally to bear those incurred by the applicants insofar as
they are not covered by the Council.

Applicant: Zino Davidoff SA (Fribourg, Switzerland) (represented
by: H. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

Other party to the proceedings before the Board of Appeal: Clifarm i.
Kleinakis & SIA OE (Glyfada, Greece)

Pleas in law and main arguments

Form of order sought

The applicants, who are respectively producers and exporters of
silico-manganese to the European Union, seek the annulment of
Council Regulation (EC) No 1420/2007 of 4 December 2007
imposing a definitive anti-dumping duty on imports of silico-
manganese originating in the People's Republic of China and
Kazakhstan and terminating the proceedings on imports of
silico-manganese originating in Ukraine (1).

In support of their application, the applicants submit that the
defendants committed manifest errors of assessment, breached
the Basic Regulation (2) and failed to state reasons in accordance
with Article 253 EC by including Kazakhstan and excluding
India from the anti-dumping investigation; by rejecting the
applicants' claim that they operate as a single economic entity;
when determining the applicants' export price; when assessing
whether and to what extend the imports of silico-manganese
from Kazakhstan caused injury to the Community industry; by
cumulating the imports from Kazakhstan with the imports from
China for the purposes of this assessment and when assessing
the Community interest.

The applicants furthermore submit that the Community institu-
tions breached their right to be heard and the principles of
good administration, protection of
the applicants legitimate
expectations, non-discrimination and proportionality as, among
others, the applicants were not given access to information that
was relevant to the findings of the Community institutions and
as the undertaking offered by the applicants was rejected.

(1) OJ 2007 L 317, p. 5.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ 1996 L 56, p. 1).

— Annul the decision of the Second Board of Appeal of the

OHIM in Case R 298/2007-2;

— order the OHIM or the intervener to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GOOD LIFE’ for
goods in class 3 — application No 1 709 641

Proprietor of the mark or sign cited in the opposition proceedings:
Clifarm i. Kleinakis & SIA OE

Mark or sign cited: The Community and national word marks
‘GOOD LIFE’ for goods in classes 3, 5 and 16

Decision of the Opposition Division: Rejection of the opposition in
its entirety

Decision of the Board of Appeal: Annulment of the Opposition
Division's decision and remittal of the case to the Opposition
Division for further consideration

Pleas in law: Infringement of Articles 43, 73 and 74 of Council
Regulation No 40/94 and of Rule 22 of Commission Regulation
No 2868/95, among others as the Board of Appeal has taken
into account goods for which the trade mark applied for does
not claim protection and on which the opposition was not
based; as the Board of Appeal should not have taken into
consideration the evidence presented by Clifarm i. Kleinakis &
SIA OE for use of its trade marks; and as the Board of Appeal
has considered evidence that the applicant could not evaluate.