Case T-229/08: Action brought on 13 June 2008 — Impala v Commission
Date: 2008-06-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), distributive trades, dominant position, economic concentration, merger control, music, patents licence, restrictive-practice authorisation

2.8.2008

EN

Official Journal of the European Union

C 197/33

Article 76(1)(f) of the said regulation as the Board of Appeal
erred in not taking into account the affidavit of the applicant's
managing director;
infringement of Article 74(2) of the said
regulation and of Rul 22(1) and (2) of Commission Regulation
No 2868/95 (1) as the further evidence submitted at the appeal's
stage of the opposition proceedings is admissible and has to be
taken into account when assessing the genuine use of the oppo-
sition mark; infringement of applicant's right to be heard as the
Board of Appeal should have taken into account evidence of use
submitted after the time limit.

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995
implementing Council Regulation (EC) No 40/94 on the Community
trade mark (OJ 1995 L 303, p. 1).

Action brought on 11 June 2008 — Lemans v OHIM —
Stephen Turner (ICON)

(Case T-218/08)

(2008/C 197/57)

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ICON’ for
goods and services in classes 9, 18 and 25 — application
No 2 197 366

Proprietor of the mark or sign cited in the opposition proceedings: The
other party to the proceedings before the Board of Appeal

Mark or sign cited: The national word mark ‘IKON’ for goods in
class 9 — UK trade mark registration No 2 243 676

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its finding that the
other party to the proceedings before it had locus standi to file
the opposition.

Language in which the application was lodged: English

Action brought on 13 June 2008 — Impala v Commission

Parties

(Case T-229/08)

(2008/C 197/58)

Applicant: Lemans Corporation (Janesville, United States) (repre-
sented by: M. Cover, Solicitor)

Language of the case: English

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

Parties

Other party to the proceedings before the Board of Appeal: Stephen
Turner (Luddington, United Kingdom)

Applicant: Independent Music Publishers and Labels Association
(repre-
(Impala,
sented by: S. Crosby,
J. Golding, Solicitors, and I. Wekstein,
lawyer)

international association)

(Brussels, Belgium)

Form of order sought

Defendant: Commission of the European Communities

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 28 March 2008 in case R 589/2007-2;

Form of order sought

— declare that the opposition be dismissed and that Com-
munity trade mark concerned may proceed to registration;
and

— order the other party to the proceedings before the Board of
including the appeals before the

Appeal to pay the costs,
Board of Appeal and the Court of First Instance.

— annul the Commission's Decision of 3 October 2007 in
Case No COMP/M.3333-Sony/BMG declaring a concentra-
tion compatible with the common market and the func-
tioning of the EEA Agreement, in accordance with Article 8
(2) of Council Regulation (EEC) No 4064/89 (1);

— order the Commission to pay the costs.

C 197/34

EN

Official Journal of the European Union

2.8.2008

Pleas in law and main arguments

Action brought on 25 June 2008 — Melli Bank v Council

By Decision C(2004) 2815 of 19 July 2004, the Commission
declared compatible with the common market the concentration
by which Bertelsmann AG and Sony Corporation of America
acquired joint control of the joint venture company Sony BMG
combining their recorded music businesses (Case No. COMP/
M.3333-Sony/BMG). By the judgment of 13 July 2006, the
Court of First Instance annulled the Commission's decision (2).
the case was re-notified to the
Following this annulment,
Commission who reassessed the concentration under
the
current market circumstances and by contested Decision C
(2007) 4507 of 3 October 2007 authorised the merger as
compatible with the common market and functioning of the
EEA Agreement.

The applicant who is an international association representing
independent music companies — competitors to the parties to
the merger seeks the annulment of that decision. It claims that
in authorising the merger the Commission committed a mani-
fest error of assessment, and/or misapplied the law on collective
dominance and/or infringed Article 253 EC by:

— failing to apply the correct test and to properly assess the
existence, strengthening or creation of a collective dominant
position in the physical recorded music market and market
for recorded music in digital formats;

— failing to conduct a prospective analysis as to whether or
not the concentration might strengthen or create a collective
dominant position on the market
for physical recorded
for recorded music in digital
music and/or
formats, and failing to give reasons or sufficient reasons for
dispensing with a prospective analysis;

the market

— failing to conduct a proper analysis concerning the possible
effects of the merger on consumer choice or cultural diver-
sity, or to make a prospective analysis thereof; and

— in conclusion, failing to find that the merger strengthened or
created a collective dominant position in the physical
recorded music market and market for recorded music in
digital formats.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the
control of concentrations between undertakings (OJ 1989 L 395,
p. 1, corrigendum OJ 1990 L 257, p. 13).

(2) Case T-464/04, Impala v. Commission, [2006] ECR II-2289, judgment
on appeal, Case C-413/06 P, Bertelsmann and Sony Corporation of
America v Impala.

(Case T-246/08)

(2008/C 197/59)

Language of the case: English

Parties

Applicant: Melli Bank plc (London, United Kingdom)
(repre-
sented by: R. Gordon, QC, J. Stratford, Barrister, R. Gwynne and
T. Din, Solicitors)

Defendant: Council of the European Union

Form of order sought

— Annul paragraph 4, section B, of the annex to Council Deci-
sion 2008/475/EC concerning restrictive measures against
Iran, in so far as it relates to Melli Bank plc;

— Grant such further or other relief as may seem just and

appropriate in the circumstances;

— Order that the Council pay the Bank's costs of this applica-

tion.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of
Council Decision 2008/475/EC of 23 June 2008 (1)
imple-
menting Article 7(2) of Council Regulation No 423/2007
concerning restrictive measures against Iran (2) in so far as the
applicant is included on the list of natural and legal persons,
entities and bodies whose funds and economic resources are
frozen in accordance with this provision.

The applicant seeks the annulment of paragraph 4, section B, of
the Annexe,
in so far as it relates to the applicant, on the
grounds that it is unlawful in two respects.

First, the applicant claims that the contested decision is dispro-
portionate in that freezing the funds and economic assets of the
applicant
(i) has no rational relationship with the aim of
preventing nuclear proliferation or its funding and (ii) it is not
the least restrictive mean of exercising vigilance against the
applicant or of pursuing the aim of preventing the funding of
nuclear proliferation.