Case T-538/08: Action brought on 9 December 2008 — Rewe-Zentral v OHIM — Kodi Diskontläden (inéa)
Date: 2008-12-09
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/29

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

Defendant: Council of the European Union

submits

to justify different

treatment. The fact

The applicant
that by maintaining anti-dumping
measures with respect to imports of PSF originating in Korea
while the imports of PSF from Malaysia and Taiwan were not
subjected to anti-dumping measures the European institutions
violated the fundamental principle of non-discrimination. The
forward by the
applicant contests the three arguments put
Council
the
that
complaint in the case of PSF originating in Malaysia and Taiwan
was withdrawn and no definitive finding was made by the
Council cannot, in the applicant's opinion, justify the discrimi-
natory treatment of the case of PSF originating in Korea. The
applicant contests as well that the fact that the Community
interest test applied in the case of PSF originating in Malaysia
and Taiwan was different from the Community test applied in
the case of PSF originating in Korea could justify the discrimina-
tory treatment of the latter. The applicant further submits that,
contrary to Council's findings, the fact that different conclusions
regarding Community interest were reached in the investigations
concerning Malaysia and Taiwan, on the one hand, and Korea,
on the other hand, could neither justify the discriminatory treat-
ment.

The applicant further claims that the decision that termination
of anti-dumping measures on imports of PSF manufactured and
exported by the applicant is not justified on Community interest
grounds is vitiated by fundamental contradictions and incoher-
encies.

(1) OJ L 247, p. 1.
(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating
the anti-dumping proceeding concerning imports of synthetic staple
fibres of polyesters (PSF) originating in Malaysia and Taiwan and
the provisional duties
releasing the amounts secured by way of
imposed (OJ L 160, p. 30).

Action brought on 9 December 2008 — Cixi Jiangnan
Chemical Fiber and Others v Council

(Case T-537/08)

(2009/C 55/54)

Language of the case: English

Parties

Applicant(s): Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai
Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd,
Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa
Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang
Waysun Chemical Fiber Co. Ltd, Zhejiang Anshun Pettechs Fibre
Co. Ltd (China) (represented by: J.-F. Bellis, lawyer, G. Vallera,
Barrister)

Form of order sought

— annul Council Regulation

(EC) No

893/2008

of
10 September 2008, maintaining the anti-dumping duties
on imports of polyester staple fibres originating in Belarus,
the People's Republic of China, Saudi Arabia and Korea
following a partial interim review pursuant to Article 11(3)
of Regulation (EC) No 384/96 (1), with retroactive effect as
of 29 December 2006, that is, the date on which imports of
polyester staple fibres originating in Taiwan and Malaysia
were subjected to provisional anti-dumping duties, which
the Commission decided not
in its Decision
No 2007/430/EC of 19 June 2007 (2);

to collect

— order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

By means of this application the applicants, China-based compa-
nies, seek annulment of Council Regulation No 893/2008 main-
taining anti-dumping measures with respect to,
inter alia, the
imports of polyester staple fibres (PSF) manufactured by the
applicants and originating in China. The applicants submit that
the same treatment as was applied in Commission Decision
No 2007/430/EC to the PSF originating in Taiwan and Malaysia
should be applied to the PSF originating in China. Therefore, the
anti-dumping duty should be repealed as of the same date, i.e.
29 December 2006, with respect to the PSF originating in
China.

The pleas in law and main arguments put forward by the appli-
cants are identical to those relied on in case T-536/08, Huvis v
Council.

(1) OJ L 247, p. 1.
(2) 2007/430/EC: Commission Decision of 19 June 2007 terminating
the anti-dumping proceeding concerning imports of synthetic staple
fibres of polyesters (PSF) originating in Malaysia and Taiwan and
releasing the amounts secured by way of
the provisional duties
imposed (OJ L 160, p. 30).

Action brought on 9 December 2008 — Rewe-Zentral v
OHIM — Kodi Diskontläden (inéa)

(Case T-538/08)

(2009/C 55/55)

Language in which the application was lodged: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented
by M. Kinkeldey and A. Bognár, lawyers)

C 55/30

EN

Official Journal of the European Union

7.3.2009

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

Form of order sought

Other party to the proceedings before the Board of Appeal of OHIM:
Koki Diskontläden GmbH (Oberhausen, Germany)

Form of order sought

— annul the decision of the Fourth Board of Appeal of OHIM

of 6 October 2008 in Case No R 744/2008-4 and

— order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘inéa’
in the
colours blue, pink and white for goods in Classes 3, 5 and 16
(application No 4 462 826).

Proprietor of the mark or sign cited in the opposition proceedings:
Kodi Diskontläden GmbH.

or

sign

‘MINEA’
Mark
(No 303 61 428,5) for goods in Classes 8, 9 and 16, the oppo-
sition being directed against registration for goods in Class 16.

opposition: Trade mark

cited

in

— declare Article 1 of the decision to be void, in so far as it
finds that there was an infringement by the applicants of
Article 81(1) EC and Article 53 of the EEA Agreement;

— declare Article 2 of the decision to be void, in so far as it
imposes a fine of EUR 37 440 000 jointly and severely on
the applicants;

— in the alternative, make an appropriate reduction in the fine
imposed jointly and severely on the applicants in Article 2
of the decision;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

are

applicants

Commission Decision
challenging
The
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
— Candle Waxes,
in which the defendant established that
certain undertakings, including the applicants, had participated
in a continuing agreement and/or concerted practice in the
paraffin waxes
sector, contrary to Article 81(1) EC and
Article 53 of the Agreement on the European Economic Area.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Decision of the Opposition Divi-
sion annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since there is no likelihood of confusion between
the opposing marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

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

Action brought on 15 December 2008 — RWE and RWE
Dea v Commission

(Case T-543/08)

(2009/C 55/56)

Language of the case: German

Parties

Applicants: RWE AG (Essen, Germany) and RWE Dea AG
(Hamburg, Germany) (represented by: C. Stadler and M. Röhrig,
lawyers)

Defendant: Commission of the European Communities

The applicants rely on the following three pleas in law in
support of their action.

In their first plea, the applicants claim that the defendant brea-
ched Article 81(1) EC and Article 23(2)(a) of Regulation (EC)
No 1/2003 (1) by erroneously applying the notion of under-
taking to the detriment of the applicants. The defendant held
the applicants responsible for infringements by the former DEA
Mineraloel AG and/or — after re-organisation of the company
into an equally owned joint venture with Shell — the Shell &
Dea Oil GmbH and, for that reason, imposed a fine on them
without having established that they formed a single economic
unit.

Alternatively, the applicants claim in their second plea that the
defendant did not properly apply the Leniency Notice of 2002
and thereby infringed the principle of equal treatment, because
it did not extend the leniency application for the paraffin wax
business made by the former DEA Mineraloel AG and/or Shell
& Dea Oil GmbH to the applicants. By so doing, the defendant
contradicts its own view that the paraffin wax business was
specifically part of the same economic unit as the applicants in
the period from 3 September 1992 to 30 July 2002. Had the
Leniency Notice been correctly applied, the defendant should
have granted the applicants full immunity from any fine.

and proportionality,

Alternatively, the applicants claim in their third plea that the
defendant
infringed fundamental principles governing the
assessment of fines, in particular the principles of equal treat-
ment
infringed
Article 23(2) and (3) of Regulation No 1/2003. The defendant
incorrectly applied the 2006 Guidelines on fines by establishing
the relevant turnover on the basis of a reference period which
was not sufficiently representative, and thus determined a basic
amount which was not proportionate to the severity of the

in that way

and