Case T-400/08: Action brought on 22 September 2008 — Enercon v OHIM — BP (ENERCON)
Date: 2008-09-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU), 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)

C 301/52

EN

Official Journal of the European Union

22.11.2008

Other party to the proceedings before the Board of Appeal: BP plc
(London, United Kingdom)

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 14 July 2008 in case R 957/2006-4, insofar
as it dismisses the appeal lodged by the applicant against the
decision of the Opposition Division of 26 May 2006 ruling
on opposition number B 760 605; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

— annulment of

proceedings

the decision of

3043 concerning

the Commission of
the European Communities adopted on 25 June 2008
C(2008)
to
Article 81 of the EC Treaty and Article 53 of the EAA
Agreement, Case COMP/39.180 — Aluminium fluoride,
notified to Fluorsid and Minmet on 11 July 2008 and 9 July
2008 respectively, or, in the alternative, for reduction of the
fine imposed on Minmet and Fluorsid under the decision as
provided for in Article 4482) of the Rules of Procedure of
the Court.

pursuant

Applicant for the Community trade mark: The applicant

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ENERCON’ for
goods in classes 1, 2 and 4

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

or

sign cited: Community

trade mark registration
Mark
No 137 828 of the word mark ‘ENERGOL’ for goods in classes 1
and 4

Decision of the Opposition Division: Upheld the opposition except
for the goods that were found dissimilar

Decision of the Board of Appeal: Rejected the appeal for the goods
that were found dissimilar and dismissed the appeal for the
remainder

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal erred in its finding that
there is a likelihood of confusion between the conflicting trade
marks.

Action brought on 20 September 2008 — Fluorsid and
Minmet v Commission

(Case T-404/08)

(2008/C 301/88)

Language of the case: Italian

Parties

Applicants: Fluorsid SpA (Assemini,
(Lausanne, Switzerland)
Perego, lawyers)

Italy) and Minmet Co.
(represented by: L. Vasques and F.

Defendant: Commission of the European Communities

By its present action, the companies Fluorsid and Minmet wish
to challenge the decision by which the European Commission
found an infringement of Article 81(1) of
the Treaty and
Article 53(1) of the EAA Agreement and therefore jointly and
severally fined Fluorsid and Minmet for an alleged serious infrin-
gement of Article 81 of
sum of
the
EUR 1 600 000 (one million six hundred thousand).

the Treaty for

In support of their claims, the applicants plead:

— Absence of proof of the potential harm in the EAA and
infringement of the provisions of Article 81 of the Treaty. In
that respect it is stated that it is impossible to argue that
four small undertakings, of which one has not even had
sales in 2000 in the EAA, can, even in the abstract, impose
prices on large aluminium producers (also called ‘smelters’)
in a market in which it is supply and not demand which
determines prices.

— Infringement of

the duty to state reasons regarding the
proof of the unlawful conduct in breach of Article 253 of
the Treaty and Article 2 of Regulation (EC) No 1/2003, for
changing in a surreptitious manner the contested infringe-
ment in order to lessen the Commission's burden of proof.
It claims on that point that the Commission was able to
acquire evidence of an exchange of information between
competitors, but not of an agreement with an object to
restrict competition. That change of the description of the
unlawful conduct favoured the Commission, which was then
able to refer, in the applicants' view incorrectly, the per se
rule laid down for hard core restrictions, therefore lightening
its burden of proof and enabling it to disregard the fact that
the alleged unlawful conduct had no effect on the market.

— Infringement of Article 27 of Regulation No 1/2003 and of
the rights of the defence, as well as of Articles 253 and 173
of the Treaty in so far as the Commission does not cite
leniency in respect of Floursid under the Statement of Objec-
tions (SO), carried out investigations and acquired documen-
tation for the case-file after the SO, and in the final decision
challenged unlawful conduct which was different from that
challenged in the SO (uninterrupted infringement and infrin-
gement lasting 6 months).