Case T-399/08: Action brought on 18 September 2008 — Clearwire Corporation v OHIM (CLEARWIFI)
Date: 2008-09-18
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United States, action for annulment (EU), infringement of EU law, intellectual property, trade-mark law

22.11.2008

EN

Official Journal of the European Union

C 301/51

Secondly, the applicant claims that its right to a prior hearing
was infringed and thirdly, that Article 81 EC and Article 53 EEA
were wrongly applied by reason of the fact that the applicant
was condemned for a non-existent infringement. In particular, it
submits that with the signature of territorial clauses there was
no infringement of competition but that those clauses are neces-
sary to ensure to those entitled proper management of their
rights in the country in which each contracting society operates.
In addition, the applicant maintains that the Court of Justice of
the European Communities has accepted that clauses of terri-
torial exclusivity in reciprocal representation agreements do not
infringe competition.

Fourthly, the applicant claims that the contested decision does
not take account of the fact that in Community law intellectual
property and intellectual and artistic works are not the same as
other goods and services and wrongly subjects the facts to the
legal rule applicable to the latter.

the applicant maintains

the Commission has
Fifthly,
infringed Article 151 EC,
the
cultural exception, according to which the Commission must, in
any action, take cultural aspects into account in order to respect
and to promote the diversity of the cultures of the Community.

introducing the principle of

that

Sixthly, the applicant submits that the fact that the question of
fault did not enter into the examination of the alleged infringe-
ment of Article 81 EC constitutes a misapplication of the legal
rule and a clear failure to give reasons for the contested deci-
sion.

Seventhly, the applicant considers that the contested decision
infringes the principle of proportionality, since European intel-
lectual property societies are not of the same size, as well as the
principle of impartiality, because it was adopted following a
preliminary procedure that was not fair. Furthermore, the appli-
the existence of serious contradictions
cant maintains that
renders the decision defective and irrational. Moreover,
the
contested decision,
in the misleading guise, according to the
applicant, of facilitating the obtaining of licences to use music
via cable, satellite or on the internet, in reality is aimed at the
intellectual property societies, by
annihilation of
mutual
distorting healthy competition,
laying down unequal market
terms and creating inevitable clashes between those societies.
Lastly, the contested decision, directly misconstrues, in the appli-
cant's view, Directive 93/83/EEC (1) and infringes the interna-
literary and
tional Berne Convention for the protection of
artistic works, to which the European Union has acceded.

Action brought on 18 September 2008 — Clearwire
Corporation v OHIM (CLEARWIFI)

(Case T-399/08)

(2008/C 301/86)

Language of the case: English

Parties

Applicant: Clearwire Corporation (Kirkland, United States) (repre-
sented by G. Konrad, lawyer)

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

Form of order sought

— Annul the Decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 June 2008 in case R 706/2008-1; and

— Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark CLEARWIFI for
services in class 38 — international registration No W00 934 594

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 as the grounds for refusal put forward by
the Board of Appeal do not preclude registration.

Action brought on 22 September 2008 — Enercon v
OHIM — BP (ENERCON)

(Case T-400/08)

(2008/C 301/87)

Language in which the application was lodged: English

(1) Council Directive 93/83/EEC of 27 September 1993 on the coordi-
nation of certain rules concerning copyright and rights related to
copyright applicable to satellite broadcasting and cable retransmis-
sion (OJ 1993 L 248, p. 15).

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by: R.
Böhm, lawyer)

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