Case T-392/08: Action brought on 19 September 2008 — AEPI v Commission
Date: 2008-09-19
Institutions: Court of First Instance
Subjects: European Commission, Greece, action for annulment (EU), broadcasting, copyright, infringement of EU law, intellectual property, satellite communications

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.

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)