Case T-547/08: Action brought on 12 December 2008 — X-Technology Swiss v OHIM (representation of a sock)
Date: 2008-09-12
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), textile product, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/31

infringement alleged against
the applicants, and treated the
applicants, by comparison with other involved parties, including
Shell, in a discriminatory manner without objective grounds.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

Action brought on 15 December 2008 — Hansen &
and H & R Wax Company Vertrieb v
Rosenthal

Commission

(Case T-544/08)

(2009/C 55/57)

Language of the case: German

Parties

Applicants: Hansen & Rosenthal KG (Hamburg, Germany) and
H & R Wax Company Vertrieb GmbH (Hamburg, Germany)
(represented by: J. Schulte and A. Lober, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul

the contested Decision C(2008) 5476 final of
1 October 2008 in Case COMP/39.181 — Candle Waxes of
the Commission of the European Communities in so far as
it relates to the applicants;

— in the alternative, cancel the fine imposed on the applicants

or, in the further alternative, reduce that fine;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

are

applicants

The
Commission Decision
challenging
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
in which the defendant found that certain
— Candle Waxes,
undertakings,
including the applicants, had participated in a
continuing agreement and/or concerted practice in the paraffin
waxes sector, contrary to Article 81(1) EC and Article 53 of the
Agreement on the European Economic Area.

cants and the other paraffin producers did not in any way have
a common goal. The applicants did not participate in anti-
competitive agreements or concerted practices. The dispatch of
letters detailing price increases therefore did not serve to give
effect
to anti-competitive agreements or consultations, but
rather took place within the context of relations with suppliers.
Furthermore, no restriction of competition resulted otherwise
from the exchange of information.

By way of alternative submissions, the applicants take issue, in
their third to sixth pleas in law, with the level of the fine
imposed on them.

— The Commission, they submit, unlawfully applied Guidelines
on fines which were adopted only in 2006, even though the
alleged offence was terminated in early 2005. In so doing,
the Commission breached the principle that the administra-
tion is bound by its own acts, the prohibition of retroactive
effect and the principle of legal certainty.

— By their fourth plea in law, the applicants submit that the
Commission erred in its calculation of the turnover relevant
to the fine. In the relevant years 2002 to 2004, the appli-
cants achieved a turnover with paraffin products of only
EUR 18,97 million. The Commission, however, based its
calculation of the fine on a turnover of EUR 26 million.

— By their fifth plea, the applicants assert that the Commission
also incorrectly assessed the severity of the offence. The
fixing, at 17 %, of the proportion of the turnover relevant
to the offence and of the entry fee is at variance with the
insufficient
principle
account was taken of the size and importance of the under-
takings.

proportionality.

Furthermore,

of

— By their sixth plea, the applicants contend that the Commis-
sion erred in its determination of the duration of the infrin-
gement alleged against the applicants. The Commission, they
argue, has failed to prove that the applicants participated in
the alleged restriction of competition for the entire period in
respect of which they stand accused.

Action brought on 12 December 2008 — X-Technology
Swiss v OHIM (representation of a sock)

(Case T-547/08)

(2009/C 55/58)

Language in which the application was lodged: German

The applicants rely on six pleas in law in support of their
action.

By the first plea, the applicants assert that the decision is vitiated
by a serious lack of reasoning. For that reason,
it should be
annulled by reason of infringement of Article 81 EC and conse-
quential breach of the applicants' rights of defence.

Parties

Applicant: X-Technology Swiss GmbH (represented by A.
Herbertz and R. Jung, lawyers)

By the second plea, the applicants claim that the conditions for
an infringement of Article 81 EC have not been met. The appli-

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

C 55/32

EN

Official Journal of the European Union

7.3.2009

Form of order sought

The applicant relies on two pleas in law in support of its action.

— annul the decision of the Fourth Board of Appeal of OHIM

of 6 October 2008 in Case R 846/2008-4;

— order OHIM to bear its own costs and pay those of the

applicant.

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark as ‘other
mark — positional mark’
‘orange
(Pantone 16-1359 TPX)’
for goods in Class 25 (application
No 5 658 117).

colour

the

of

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94, (1) since the trade mark applied for
fulfils the
minimum requirement as to distinctive character.

(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 15 December 2008 — Tudapetrol
Mineralölerzeugnisse Nils Hansen v Commission

(Case T-550/08)

(2009/C 55/59)

Language of the case: German

Parties

Applicant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG
(Hamburg, Germany) (represented by: U. Itzen and J. Ziebarth,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce as appropriate the level of the fine

imposed on the applicant in the contested decision;

the

to state

By its first plea in law, the applicant claims that there has been
an infringement of
reasons under
duty
Article 253 EC and an infringement of the rights of the defence
inasmuch as the appraisal of evidence carried out by the
Commission in the contested decision does not in fact specifi-
cally indicate which acts contributing to the offence are to be
attributed to the applicant. The broad-brush appraisal of the
evidence carried out by the Commission relates to, besides the
applicant, also other companies, the actions of which cannot be
attributed to the applicant. In light of the unclear appraisal of
the
the evidence,
defence, as the Commission is under an obligation to indicate,
in a clear and unequivocal manner, which contributory acts it
attributes to which undertakings and the consequences thereof.

there is an infringement of

the rights of

The applicant further claims that it was not involved in any
activity contrary to Article 81 EC. Not only did the Commission
fail,
in formal terms, to carry out a proper appraisal of the
evidence, but even a subsidiary substantive examination of the
evidence indicates that no allegation made against the applicant
was substantiated. The conclusion that the applicant infringed
the law on cartels cannot be drawn from the meetings detailed
and the evidence thereof provided in the framework of the
appraisal of the evidence. This is especially true also in light of
the fact that only a limited allegation was made from the outset
in relation to the applicant. That fact, however, was not taken
into consideration when the evidence was being appraised;
instead, and to the further detriment of the applicant, account
was taken of evidence which might prove potential offences on
the part of third parties but in which the applicant was not
involved.

By its second plea in law, the applicant claims that the limitation
period had expired. It claims that it had already, at the beginning
of 2000, transferred the distribution business in question to
another company, with the result that the first measures in early
2005 that stopped the limitation period running could no
longer have led to action being taken against the applicant in
respect of an old offence.

Action brought on 15 December 2008 — H & R
ChemPharm v Commission

(Case T-551/08)

(2009/C 55/60)

— order the defendant to pay the costs of the proceedings.

Language of the case: German

Pleas in law and main arguments

is

applicant

challenging

Commission

The
Decision
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
in which the defendant found that certain
— Candle Waxes,
including the applicant, had participated in a
undertakings,
continuing agreement and/or concerted practice in the paraffin
waxes sector, contrary to Article 81(1) EC and Article 53 of the
Agreement on the European Economic Area.

Parties

Applicant: H & R ChemPharm GmbH (Salzbergen, Germany)
(represented by: M. Klusmann and S. Thomas, lawyers)

Defendant: Commission of the European Communities