Case T-431/08: Action brought on 1 October 2008 — Bulur Giyim Sanayi ve Ticaret Sirketi v OHIM — Denim (VIGOSS)
Date: 2008-10-01
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), competition law, textile industry, trade-mark law

C 313/46

EN

Official Journal of the European Union

6.12.2008

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

Action brought on 1 October 2008 — Bulur Giyim Sanayi
ve Ticaret Sirketi v OHIM — Denim (VIGOSS)

(Case T-430/08)

(2008/C 313/83)

Language in which the application was lodged: English

(Case T-431/08)

(2008/C 313/84)

Language in which the application was lodged: English

Parties

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

Parties

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 478/2007-2; 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 word mark ‘GRAIN
MILLERS’ for goods in classes 29, 30 and 31 — application
No 3 650 256

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: Partially rejected the opposi-
tion

Applicant: Bulur Giyim Sanayi ve Ticaret Sirketi
Turkey) (represented by: R. Böhm, lawyer)

(Istanbul,

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

Other party to the proceedings before the Board of Appeal: A V
Denim, Inc. (trading as A&V Denim, Inc.) (New York, United
States)

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 18 July 2008 in case R 1366/2007-2,
insofar as it dismissed the appeal lodged by the applicant
against the decision of the Opposition Division of 26 June
2007 ruling on opposition No B 923 005; and

— Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

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

Community trade mark concerned: The word mark ‘VIGOSS’ for
goods in classes 14, 18 and 25

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.

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

or

sign cited:

Mark
trade mark registration
No 771 374 of the figurative mark ‘VIGOSS’ for goods in
class 25

International

6.12.2008

EN

Official Journal of the European Union

C 313/47

Decision of the Opposition Division: Partially rejected the applica-
tion

Decision of the Board of Appeal: Partially annulled the contested
decision and dismissed the appeal for the reminder

The applicant submits that the contested decision is vitiated
both by errors of fact and of law, as well the breach of the
applicant's procedural guarantees relating to its right
to be
heard.

Pleas in law: Infringement of Article 8(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal failed to take into
account all relevant factors when assessing the likelihood of
confusion between the conflicting trade marks.

With regards to the alleged errors of fact, the applicant claims
that the Commission has failed to acknowledge the system of
collective licensing copyrights for musical works and thereby
also the Norwegian factual context.

With regards to the alleged errors of law, the applicant submits
the following:

First, the applicant claims that the contested decision suffers
from a formal error which should result in the decision being
repealed. Namely, the applicant argues that its right to be heard
has been violated since the final decision differs from the state-
ment of objections on a central point relating to the description
of the infringement.

Second, the applicant contests the fact that the inclusion of
territorial delineation in the reciprocal agreements, in which it
participated,
is the result of concerted practices between the
EEA CISAC members.

the

argues

applicant

the parallel

Third, the applicant contends that the Commission erroneously
concluded that
territorial delineation as regards
retransmission in cable is restrictive of competition in violation
of Article 81(1) EC. According to the applicant, the alleged
concerted practice on territorial delineation concerns a form of
competition that is not in itself protected by Article 81(1) EC.
the Commission
In addition,
committed an error of
there is a
national monopoly in Norway for multi-repertoire licensing of
public performance rights covering retransmission in cable
networks. Moreover,
the
alleged concerted practice was considered to restrict competi-
tion, it does not infringe Article 81(1) EC because it is necessary
and proportionate to a legitimate objective, having regard to the
licensing,
particular
performing rights, auditing, monitoring and enforcement
in
relation to re-transmission by cable.

the applicant submits that, even if

fact when assuming that

the management of

requirements of

that

Fourth, the applicant claims that the territorial delineations of
its reciprocal agreements are exempted under Article 81(3) EC.
The applicant's submission in this respect is that the abovemen-
tioned delineations are indispensable to the upholding of the
efficient one-stop-shop principles and the Norwegian extended
licensing system, thereby ensuring a minimum degree of admin-
istration, whilst at the same time safeguarding the interests of
the rights holders.

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

Action brought on 1 October 2008 — TONO v
Commission

(Case T-434/08)

(2008/C 313/85)

Language of the case: English

Parties

Applicant: TONO (Oslo, Norway) (represented by: S. Teigum and
A. Ringnes, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant respectfully requests the Court of First Instance of
the European Communities to:

— Annul Article 3 of Commission Decision COMP/C2/38.698

— CISAC;

— In the alternative, annul Article 3 of Commission Decision
COMP/C2/38.698 — CISAC with regard to cable retransmis-
sion;

— Order the Commission to bear the applicant's costs;

Pleas in law and main arguments

By means of its application the applicant seeks partial annul-
ment of Commission Decision C(2008) 3435, of 16 July 2008,
relating to a proceeding under Article 81 EC and Article 53 EEA
its
(Case COMP/C2/38.698 — CISAC) and in particular, of
Article 3, determining that the EEA CISAC (1) members engaged
in a 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’. In the alternative, the applicant seeks annul-
ment of Article 3 of the contested decision with regards to
cable retransmission.