Case T-502/08: Action brought on 21 November 2008 — Volkswagen v OHIM — Deutsche BP (SunGasoline)
Date: 2008-11-21
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, Germany, action for annulment (EU), motor vehicle industry, trade-mark law

C 44/48

EN

Official Journal of the European Union

21.2.2009

— infringement of Article 23 of Regulation No 1/2003 and
legitimate expectations in
the principle of protection of
fixing the amount of
the Commission
in that
the fine,
misapplied the guidelines for calculating fines by (i) not
using an audited figure for turnover and (ii) omitting to esti-
mate the total value of sales of goods or services in connec-
tion with the infringement in the geographical sector. More-
over, the Commission erred in its classification of the facts.
Finally, the applicant puts forward, in support of its claim
for a reduction of the fine, the small part of the aggregate
market share of the parties to the agreement and the lack of
implementation;

— infringement of

the Euro-Mediterranean Agreement with
Tunisia (2), on the ground that the Commission applied the
Community competition rules exclusively, although the
competition rules of
the Euro-Mediterranean Agreement
were applicable, albeit in parallel to the Community compe-
tition rules. According to the applicant, the Commission
should
EU/Tunisia Association
the
Committee, as required by Article 36 of the Agreement. The
applicant further submits that the unilateral approach taken
by the Commission is contrary to the principle of interna-
tional comity and to its duty of care.

consulted

have

(1) 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 of the Treaty (OJ 2003 L 1, p. 1).

(2) Euro-Mediterranean Agreement establishing an association between
the European Communities and their Member States, of the one
part, and the Republic of Tunisia, of the other part (OJ 1998 L 97,
p. 2).

— Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Volkswagen.

Community trade mark concerned: word mark ‘SunGasoline’
in
respect of goods and services in Classes 4, 7, 12, 35, 37 and 39
(Application No 3 418 647).

Proprietor of the mark or sign cited in the opposition proceedings:
Deutsche BP AG.

sign cited in opposition:

Mark or
the German word mark
‘GASOLIN’ (Trade mark No 763 901) in respect of goods in
Class 4.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Appeal upheld for certain goods
in Class 4.

Pleas in law:
in conjunction
Infringement of Article 15(2)(b)
with Article 43(2) of Regulation No 40/94 (1) in that legally
accepted use of the mark in opposition was not proved to the
requisite level, and infringement of Article 8(1)(b) of Regulation
No 40/1994 in that there is no likelihood of confusion between
the marks at issue.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 21 November 2008 — Volkswagen v
OHIM — Deutsche BP (SunGasoline)

(Case T-502/08)

(2009/C 44/84)

Action brought on 20 November 2008 — Rundpack v
OHIM (Representation of a tumbler)

(Case T-503/08)

(2009/C 44/85)

Language in which the application was lodged: German

Language in which the application was lodged: German

Parties

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany)
by: H.-P. Schrammek, C. Drzymalla and S Risthaus, lawyers)

(represented

Applicant: Rundpack (represented by R. Chmilewsky-Lehner,
lawyer)

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

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

Other party to the proceedings before the Board of Appeal of OHIM:
Deutsche BP AG (Gelsenkirchen, Germany)

Form of order sought

Form of order sought

— Annul the decision of the Fourth Board of Appeal of OHIM
of 19 September 2008 in appeal case R-513/2007-4, and

— Annul the contested decision (R 1400/2006-1) of OHIM of
3 September 2008 and refer the trade mark application
No 003 317 591 back to OHIM to allow for the registration
process to continue, and order OHIM to bear all the costs
associated with the case,
including those
incurred before the Board of Appeal.

in particular