Case T-429/08: Action brought on 30 September 2008 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)
Date: 2008-09-30
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, United States, action for annulment (EU), copyright, intellectual property, quality label

6.12.2008

EN

Official Journal of the European Union

C 313/45

Pleas in law and main arguments

Action brought on 30 September 2008 — Grain Millers v
OHIM — Grain Millers (GRAIN MILLERS)

By means of this application the applicant seeks partial annul-
ment pursuant
to Article 230 EC of Commission Decision
C(2008) 3435 final of 16 July 2008 (Case COMP/C2/38.698 —
CISAC) relating to a proceeding under Article 81 EC and
Article 53 EEA. Precisely, the applicant contests the Commission
findings in Article 3 of the contested decision stating that terri-
the reciprocal representation mandates
torial delineations of
society to another constitute a
granted by one authors'
concerted practice
in violation of Article 81 EC and
Article 53 EEA.

Parties

(Case T-429/08)

(2008/C 313/82)

Language in which the application was lodged: English

The applicant puts forward four pleas in law in support of its
claims.

Applicant: Grain Millers, Inc. (Eden Prairie, United States) (repre-
sented by: L.-E. Ström, lawyer)

First, the applicant submits that the Commission committed an
error of assessment and infringed Article 81 EC by deciding that
the parallel
territorial delineation included in the reciprocal
representation agreements concluded by the applicant and the
other CISAC members is the result of a concerted practice. It
claims that the level of evidence put forward by the Commission
in the decision is insufficient
the parallel
conduct is not the result of normal competitive conditions but
constitutes such a concerted practice. The applicant
further
states that the presence of the delineation clause in all of its reci-
procal agreements is necessary to protect effectively and suffi-
ciently the interest of the authors represented by the applicant
and the other CISAC members.

to establish that

the

the

restrictive of

contested decision,

Secondly, the applicant contends that, contrary to the findings
of
territorial delineation by
CISAC societies in their reciprocal representation agreements is
not
competition within the meaning of
Article 81(1) EC because to create and protect the competition
between the authors' societies would be inconsistent with the
fundamental nature of the collecting society which is to protect
its
the rights of
members.

its members and operate exclusively for

Thirdly, in the alternative, the applicant argues that, even if the
territorial delineation constituted a concerted practice within the
meaning of Article 81(1) EC, the conditions of Article 81(3) EC
are fulfilled. It states that the challenged practice improves the
distribution of music, allows consumers fair share of
the
resulting benefits, does not impose restrictions on undertakings
which are not indispensable to the attainment of the objective
nor afford them the possibility of eliminating competition in
respect of a substantial part of
the products. This practice
should be then considered to be necessary and proportionate, in
the meaning of Article 81(3) EC to the legitimate objective of
protecting the rights of the societies' members and the authors.

Finally, the applicant claims that the Commission failed to apply
Article 151(4) EC in its decision which states that the Com-
munity shall take into account cultural aspects in its action
under other provisions of the Treaty, in particular in order to
respect and to promote the diversity of its cultures.

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

Other party to the proceedings before the Board of Appeal: Grain
Millers GmbH & Co. KG (Bremen, Germany)

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 23 July 2008 in case R 1192/2007-2; and

— Order the other party to the proceedings before the Board

of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘GRAIN
MILLERS’ for goods in classes 29, 30 and 31 — application
No 363 8657

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

Mark or
MILLERS’ and its figurative version

sign cited: German ‘business designation’

‘GRAIN

Decision of the Opposition Division: Rejected the opposition in its
entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(4) of Council Regulation
No 40/94 as the Board of Appeal has overestimated the value of
the evidence submitted by the other party to the proceedings
before the Board of Appeal in order to substantiate prior rights
over the earlier trade mark.