Case T-412/08: Action brought on 25 September 2008 — Trubion Pharmaceuticals v OHIM — Merck (TRUBION)
Date: 2008-09-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, United States, action for annulment (EU), intellectual property, medicinal product, pharmaceutical industry, trade-mark law

22.11.2008

EN

Official Journal of the European Union

C 301/55

in so far as they hold the applicant

The applicant seeks the annulment of Articles 3 and 4(2) and
(3) of the contested decision which relate to three specific forms
of exploitation (internet, satellite transmission and cable retrans-
liable for an
mission)
Article 81 EC infringement by coordinating with other CISAC
members the territorial delineation clauses of reciprocal repre-
sentation agreements in a way which limited a licence to the
domestic territory of each collective rights management societies
(‘CMRS’).

Action brought on 25 September 2008 — Trubion
Pharmaceuticals v OHIM — Merck (TRUBION)

(Case T-412/08)

(2008/C 301/92)

Language in which the application was lodged: English

The applicant challenges the contested decision on the basis of
four grounds, namely, lack of competence, infringement of an
essential procedural
the
requirement,
EC Treaty and the misuse of powers by the Commission.

the infringement of

Parties

In support of its application, the applicant submits the following
pleas in law:

Applicant: Trubion Pharmaceuticals Inc. (Seattle, United States)
(represented by: C. Hertz-Eichenrode, lawyer)

First, according to the applicant, the Commission violated the
applicant's rights of defence by adopting the contested decision
and fundamentally departing from its position in the Statement
of Objections.

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

Other party to the proceedings before the Board of Appeal: Merck
KGaA (Darmstadt, Germany)

the

applicant

Second,
the decision infringes
Article 253 EC, as it lacks proper reasoning and fails to identify
the starting point of the alleged concerted practice.

claims

that

the

contends

applicant

Third,
the decision violates
Article 81 EC and Article 2 of Regulation (EC) No 1/2003 (2) as
the Commission did not produce sufficient evidence to establish
the existence of a concerted practice to the requisite legal stand-
ard and consequently failed to meet the burden of proof.

that

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 1605/2007-2; and

— Order the defendant to pay the costs.

Fourth, it is submitted that the decision violates Article 86(2)
EC, as the applicant is an undertaking entrusted with the opera-
tion of services of general economic interest and the application
of EC competition law as set out in the contested decision
obstructs the performance of the particular tasks assigned to it.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Moreover, according to the applicant, the Commission misused
its powers under Article 81 EC by evading a procedure specifi-
cally prescribed by the EC Treaty for dealing with the circum-
stances of the case. Further, the applicant puts forward that the
decision violates Article 151(4) EC as it does not respect cultural
diversity. Finally, it is submitted that the decision violates the
principle of legal certainty in so far as it requires a course of
conduct which the Commission failed to define.

(1) International Confederation of Societies of Authors and Composers

(‘CISAC’).

(2) 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 EC (OJ 2003 L 1, p. 1).

Community trade mark concerned: The word mark ‘TRUBION’ for
goods and services in classes 5 and 42

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: Community trade mark registration No 72 884
of the word mark ‘BION’ registered for various goods; Com-
munity trade mark registration No 3 282 936 of the figurative
mark ‘TriBion Harmonis’ registered for various goods

Decision of the Opposition Division: Upheld the opposition for the
goods in class 5 and rejected it for the remaining services in
class 42

Decision of the Board of Appeal: Dismissal of the appeal

C 301/56

EN

Official Journal of the European Union

22.11.2008

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal (i) failed to asses the
similarity of the trade marks by taking into account the overall
impression of the earlier trade mark, and (ii) failed to take into
account the interdependence of the relevant factors, in particular
the low similarity of the goods when assessing the likelihood of
confusion.

Action brought on 29 September 2008 — SOZA v
Commission

(Case T-413/08)

(2008/C 301/93)

Language of the case: English

In support of its claims the applicant submits that:

(i) the inclusion of

territorial delineations in its reciprocal
representation agreements is not the result of a concerted
practice, and

(ii) in the alternative, if there were a concerted practice on terri-
torial delineations, it would not be restrictive of competition
within the meaning of Article 81 EC.

On the basis of its first plea, the applicant submits that the
Commission made an error of assessment and infringed
Article 81 EC as well as Article 253 EC by determining that the
parallel territorial delineation included in the reciprocal repre-
sentation agreements concluded by the applicant and the other
EEA CISAC members is the result of a concerted practice,
whereas the decision failed to provide any evidence of such a
concerted practice.

On the basis of its second plea, the applicant contends that the
alleged concerted practice on territorial delineations is not
illegal because it concerns a form of competition that is not
worthy of protection. Moreover, the applicant claims that, even
if the alleged practice should be considered to restrict competi-
tion, it does not infringe Article 81(1) EC because it is necessary
and proportionate to a legitimate objective.

Parties

(1) International Confederation of Societies of Authors and Composers.

Applicant: Slovenský ochranný Zväz Autorský pre práva k
hudobným dielam (SOZA) (Bratislava, Slovak Republic) (repre-
sented by: M. Favart, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 3 of the Commission decision of 16 July
2008 relating to a proceeding under Article 81 EC and
Article 53 EEA (Case COMP/C2/38.698 — CISAC); and

— Order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application the applicant seeks partial annul-
ment of the Commission decision of 16 July 2008 relating to a
proceeding under Article 81 EC and Article 53 EEA (Case
COMP/C2/38.698 — CISAC) and in particular, of its Article 3,
the EEA CISAC (1) members engaged in a
determining that
concerted practice
in violation of Article 81 EC and
Article 53 EEA by coordinating the territorial delineations of
the reciprocal representation mandates granted to one another
in a way which limits a licence to the domestic territory of each
collecting society.

Action brought on 22 September 2008 — Italy v
Commission

(Case T-426/08)

(2008/C 301/94)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato
dello Stato)

Defendant: Commission of the European Communities