Case T-550/08: Action brought on 15 December 2008 — Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission
Date: 2008-12-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), infringement of EU law, oil refining, petroleum product

C 55/32

EN

Official Journal of the European Union

7.3.2009

Form of order sought

The applicant relies on two pleas in law in support of its action.

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

of 6 October 2008 in Case R 846/2008-4;

— order OHIM to bear its own costs and pay those of the

applicant.

Pleas in law and main arguments

Community trade mark concerned: Figurative trade mark as ‘other
mark — positional mark’
‘orange
(Pantone 16-1359 TPX)’
for goods in Class 25 (application
No 5 658 117).

colour

the

of

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC)
No 40/94, (1) since the trade mark applied for
fulfils the
minimum requirement as to distinctive character.

(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 — Tudapetrol
Mineralölerzeugnisse Nils Hansen v Commission

(Case T-550/08)

(2009/C 55/59)

Language of the case: German

Parties

Applicant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG
(Hamburg, Germany) (represented by: U. Itzen and J. Ziebarth,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in so far as it relates to the

applicant;

— in the alternative, reduce as appropriate the level of the fine

imposed on the applicant in the contested decision;

the

to state

By its first plea in law, the applicant claims that there has been
an infringement of
reasons under
duty
Article 253 EC and an infringement of the rights of the defence
inasmuch as the appraisal of evidence carried out by the
Commission in the contested decision does not in fact specifi-
cally indicate which acts contributing to the offence are to be
attributed to the applicant. The broad-brush appraisal of the
evidence carried out by the Commission relates to, besides the
applicant, also other companies, the actions of which cannot be
attributed to the applicant. In light of the unclear appraisal of
the
the evidence,
defence, as the Commission is under an obligation to indicate,
in a clear and unequivocal manner, which contributory acts it
attributes to which undertakings and the consequences thereof.

there is an infringement of

the rights of

The applicant further claims that it was not involved in any
activity contrary to Article 81 EC. Not only did the Commission
fail,
in formal terms, to carry out a proper appraisal of the
evidence, but even a subsidiary substantive examination of the
evidence indicates that no allegation made against the applicant
was substantiated. The conclusion that the applicant infringed
the law on cartels cannot be drawn from the meetings detailed
and the evidence thereof provided in the framework of the
appraisal of the evidence. This is especially true also in light of
the fact that only a limited allegation was made from the outset
in relation to the applicant. That fact, however, was not taken
into consideration when the evidence was being appraised;
instead, and to the further detriment of the applicant, account
was taken of evidence which might prove potential offences on
the part of third parties but in which the applicant was not
involved.

By its second plea in law, the applicant claims that the limitation
period had expired. It claims that it had already, at the beginning
of 2000, transferred the distribution business in question to
another company, with the result that the first measures in early
2005 that stopped the limitation period running could no
longer have led to action being taken against the applicant in
respect of an old offence.

Action brought on 15 December 2008 — H & R
ChemPharm v Commission

(Case T-551/08)

(2009/C 55/60)

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

Language of the case: German

Pleas in law and main arguments

is

applicant

challenging

Commission

The
Decision
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
in which the defendant found that certain
— Candle Waxes,
including the applicant, had participated in a
undertakings,
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.

Parties

Applicant: H & R ChemPharm GmbH (Salzbergen, Germany)
(represented by: M. Klusmann and S. Thomas, lawyers)

Defendant: Commission of the European Communities