Case T-389/08: Action brought on 16 September 2008 — Lemans v OHIM — Turner (ICON)
Date: 2008-09-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United Kingdom, United States, action for annulment (EU), domestic market

C 301/50

EN

Official Journal of the European Union

22.11.2008

Action brought on 16 September 2008 — Lemans v OHIM
— Turner (ICON)

Action brought on 19 September 2008 — AEPI v
Commission

(Case T-389/08)

(2008/C 301/84)

Language in which the application was lodged: English

(Case T-392/08)

(2008/C 301/85)

Language of the case: Greek

Parties

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

Parties

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

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

Applicant: Elleniki Etairia pros Prostasia tis Pnevmatikis Idiokti-
sias AE (Greek Society for the Protection of Intellectual Prop-
erty)
(represented by: P. Xsanthopoulos, T.
(Athens, Greece)
Asproyerakis-Grivas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 3 July 2008 in case R 778/2007-2;

— A declaration that the opposition be dismissed and that
Community trade mark concerned may proceed to registra-
tion; and

— Order the other party to the proceedings before the Board
of Appeal to pay the costs, including the appeals before the
Board of Appeal and the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

for
Community trade mark concerned: The word mark ‘ICON’
goods and services in classes 9, 18 and 25 — application
No 2 197 440

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.

Form of order sought

The Court is asked to:

— allow the present application admissible in its entirety;

— annul in its entirety the contested decision of the Commis-
sion of the European Communities of 16 July 2008 in Case
COMP/C2/38.698-CISAC, No E (3435) final, relating to a
procedure under Article 81 EC and Article 53 EEA; and

— order the Commission to pay all the costs and the fees of

the applicant's lawyers.

Pleas in law and main arguments

By this application the applicant seeks the annulment of the
decision of the Commission of the European Communities of
16 July 2008 in Case COMP/C2/38.698-CISAC, No E (3435)
in so far as the Commission decided that the applicant
final,
was infringing Article 81 EC and Article 53 EEA by using, in
representation agreements with other societies, membership
restrictions contained in Article 11(2) of the model contract of
the International Confederation of Societies of Authors and
Composers (‘CISAC model contract’) or by the de facto applica-
tion of restrictions on admitting members and coordination of
territorial delineation in a way which limits a licence to the
domestic territory of each collecting society.

The applicant puts forward the following grounds for annul-
ment:

First, the applicant claims that the contested decision is based
on a mistaken assessment of the facts and of the general de
facto situation, the evidence and the subjective elements of the
infringement.