Case T-422/08: Action brought on 30 September 2008 — Sacem v Commission
Date: 2008-09-30
Institutions: Court of First Instance
Subjects: European Commission, France, action for annulment (EU), broadcasting, copyright, cultural transmission, intellectual property, regional planning, satellite communications

20.12.2008

EN

Official Journal of the European Union

C 327/31

Fifth, the contested decision lacks adequate reasoning.

(1) Commission Regulation (EC) No 68/2001 of 12 January 2001 on
the application of Articles 87 and 88 of the EC Treaty to training aid
(OJ 2001 L 10, p. 20); amended by Regulation (EC) No 363/2004
(OJ 2004 L 63, p. 20) and Regulation (EC) No 1976/2006 (OJ 2006
L 363, p. 85).

Decision of the Board of Appeal: Annulment of the decision of the
Opposition Division and rejection of the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation (EC) No 40/94 in that there is a likelihood of confusion
between the marks at issue.

Action brought on 22 September 2008 — MIP Metro v
OHIM — CBT Comunicación Multimedia (Metromeet)

(Case T-407/08)

(2008/C 327/57)

Language in which the application was lodged: German

Action brought on 30 September 2008 — Sacem v
Commission

(Case T-422/08)

(2008/C 327/58)

Language of the case: French

Parties

Parties

Applicant: MIP Metro Group Intellectual Property GmbH &
Co. KG (Dusseldorf, Germany) (represented by: J.-C. Plate and R.
Kaase, lawyers)

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

Applicant: Société des auteurs, compositeurs et éditeurs de
musique (Sacem) (Neuilly-sur-Seine, France) (represented by: H.
Calvet, lawyer)

Defendant: Commission of the European Communities

Other party to the proceedings before the Board of Appeal of OHIM:
CBT Comunicación Multimedia, SL (Getxo, Spain)

Form of order sought

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of
12 June 2008 in Case R 387/2007-1 as it is incompatible
with Article 8(1)(b) of Regulation No 40/94 on the Com-
munity trade mark and refuse application No 37 405 29 for
the Community trade mark ‘metromeet’;

— Order OHIM to pay the costs of the proceedings, including

those of the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: CBT Comunicación Multi-
media, SL

Community trade mark concerned: Figurative mark ‘Metromeet’ for
goods and services in Classes 9, 16, 35 and 41 — Application
No 3 740 529

Proprietor of the mark or sign cited in the opposition proceedings: MIP
Metro

Mark or sign cited in opposition: The national figurative mark
‘METRO’ and the word mark ‘meeting metro’ for goods and
services in Classes 9, 16, 35 and 41

finds,

— annul the Commission's decision of 16 July 2008 in Case
COMP/C2/38.698 — CISAC in so far as it (i)
in
Article 1, that the applicant had infringed Article 81 of the
EC Treaty and Article 53 of the EEA Agreement by using, in
the membership
its reciprocal representation agreements,
restrictions which were contained in Article 11(II) of the
CISAC model contract, or by de facto applying those
membership restrictions, and (ii) orders it, as a result,
in
Article 4.1, to bring that infringement immediately to an
end, insofar as it has not already done so, and to communi-
cate to the Commission all the measures it has taken for
that purpose;

— annul the Commission's decision of 16 July 2008 in Case
in
COMP/C2/38.698 — CISAC in so far as it (i)
finds,
Article 3, that the applicant infringed Article 81 of
the
EC Treaty and Article 53 of the EEA Agreement by coordi-
nating the territorial delineations in a way which limits a
licence to the domestic territory of each collecting society
and (ii) orders it, as a result, in Article 4.2, within 120 days
of the date of notification of this decision, to bring to an
end the infringement and, within that period of time, to
communicate to the Commission all the measures it has
taken for that purpose;

— annul the Commission's decision of 16 July 2008 in Case
COMP/C2/38.698 — CISAC in so far as it orders the appli-
cant to refrain from repeating any act or conduct described
in Articles 1 and 3, and from any act or conduct having the
same, or similar, object or effect.

Decision of the Opposition Division: Opposition upheld

— order the defendant to pay the costs.

C 327/32

EN

Official Journal of the European Union

20.12.2008

Pleas in law and main arguments

the applicant seeks partial annulment of

In this case,
the
Commission's decision of 16 July 2008 relating to a proceeding
under Article 81 EC and Article 53 of the EEA Agreement (Case
COMP/C2/38.698 — CISAC) concerning concerted practices on
the conditions of management and licensing of authors' public
performance rights of musical works by collecting societies, in
the form of membership restrictions applied in the reciprocal
representation agreements, as laid down by the model contract
of the International Confederation of Societies of Authors and
Composers (CISAC model contract) or as applied in practice.

In support of its application, the applicant submits, first of all,
that the Commission infringed its rights of the defence and
essential procedural requirements:

— by accusing the applicant, in the contested decision, of parti-
cipation in an alleged concerted practice while the statement
of objections sent to the applicant was based on the theory
of network effects; the applicant was therefore not in a posi-
tion to defend itself over its participation in an alleged
concerted practice;

— by failing to provide reasons for maintaining against the
applicant the complaints relating to the membership restric-
tions which were contained in the reciprocal representation
agreements entered into between European societies of
authors or applied de facto by those societies, whereas the
applicant showed that it had removed those clauses and was
not applying them;

— by failing to provide a definition of the activity which was
the subject of the contested decision, as regards the infringe-
ment relating to an alleged concerted practice and therefore
the scope of the decision's directions.

— by concluding that there was a concerted practice whereas
the alleged concerted behaviour between societies of authors
could not have limited competition;

— by ordering the societies of authors to refrain from ‘any act
or conduct having the same, or similar, object or effect’ to the
alleged concerted practices which led to the territorial limita-
tions contained in the reciprocal representation agreements
while asserting that each society was free to determine bilat-
erally the scope of the reciprocal representation agreements
entered into by them, on the ground that those contradic-
tions undermine legal certainty.

Action brought on 30 September 2008 — KODA v
Commission

(Case T-425/08)

(2008/C 327/59)

Language of the case: Danish

Parties

Applicant: KODA (Copenhagen, Denmark)
Dyrekjær and J. Borum)

(represented by: K.

Defendant: Commission of the European Communities

Secondly, the applicant claims that the Commission infringed
Article 81 EC and Article 53 of the EEA Agreement:

Forms of order sought

— Annul Commission Decision COMP/C2/38.698 — CISAC of

16 July 2008 in its entirety, or

— by accusing the applicant of an infringement by way of the
membership clause whereas the applicant showed that it had
removed those clauses and was not applying them;

— by committing a manifest error of assessment as regards
satellite radio broadcasting, since the societies of authors
were each mandated to grant the satellite radio broadcasting
operators a multi-territorial authorisation covering the entire
footprint
their
of
programmes;

broadcast

satellite

used

the

to

— by using an inaccurate market definition;

— in

the

alternative,

Decision
annul
COMP/C2/38.698 — CISAC of 16 July 2008 in its entirety
in so far as it concerns KODA, or

Commission

— annul Article 3 and Article 4(2) and (3) of Commission
Decision COMP/C2/38.698 — CISAC of 16 July 2008, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of
Commission Decision COMP/C2/38.698 — CISAC of
16 July 2008 in so far as it concerns KODA, or

— in the alternative, annul Article 3 and Article 4(2) and (3) of
Commission Decision COMP/C2/38.698 — CISAC of
16 July 2008 in so far as it concerns transmission by cable,
and

— by accusing the applicant of participation in an alleged

concerted practice without providing evidence of it;

— order the Commission to pay the costs.