Case T-543/08: Action brought on 15 December 2008 — RWE and RWE Dea v Commission
Date: 2008-12-15
Institutions: Court of First Instance
Subjects: EU trade mark, European Commission, action for annulment (EU), equal treatment, oil industry, petroleum product, trade-mark law

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

7.3.2009

EN

Official Journal of the European Union

C 55/31

infringement alleged against
the applicants, and treated the
applicants, by comparison with other involved parties, including
Shell, in a discriminatory manner without objective grounds.

(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).

Action brought on 15 December 2008 — Hansen &
and H & R Wax Company Vertrieb v
Rosenthal

Commission

(Case T-544/08)

(2009/C 55/57)

Language of the case: German

Parties

Applicants: Hansen & Rosenthal KG (Hamburg, Germany) and
H & R Wax Company Vertrieb GmbH (Hamburg, Germany)
(represented by: J. Schulte and A. Lober, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul

the contested Decision C(2008) 5476 final of
1 October 2008 in Case COMP/39.181 — Candle Waxes of
the Commission of the European Communities in so far as
it relates to the applicants;

— in the alternative, cancel the fine imposed on the applicants

or, in the further alternative, reduce that fine;

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

Pleas in law and main arguments

are

applicants

The
Commission Decision
challenging
C(2008) 5476 final of 1 October 2008 in Case COMP/39.181
in which the defendant found that certain
— Candle Waxes,
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.

cants and the other paraffin producers did not in any way have
a common goal. The applicants did not participate in anti-
competitive agreements or concerted practices. The dispatch of
letters detailing price increases therefore did not serve to give
effect
to anti-competitive agreements or consultations, but
rather took place within the context of relations with suppliers.
Furthermore, no restriction of competition resulted otherwise
from the exchange of information.

By way of alternative submissions, the applicants take issue, in
their third to sixth pleas in law, with the level of the fine
imposed on them.

— The Commission, they submit, unlawfully applied Guidelines
on fines which were adopted only in 2006, even though the
alleged offence was terminated in early 2005. In so doing,
the Commission breached the principle that the administra-
tion is bound by its own acts, the prohibition of retroactive
effect and the principle of legal certainty.

— By their fourth plea in law, the applicants submit that the
Commission erred in its calculation of the turnover relevant
to the fine. In the relevant years 2002 to 2004, the appli-
cants achieved a turnover with paraffin products of only
EUR 18,97 million. The Commission, however, based its
calculation of the fine on a turnover of EUR 26 million.

— By their fifth plea, the applicants assert that the Commission
also incorrectly assessed the severity of the offence. The
fixing, at 17 %, of the proportion of the turnover relevant
to the offence and of the entry fee is at variance with the
insufficient
principle
account was taken of the size and importance of the under-
takings.

proportionality.

Furthermore,

of

— By their sixth plea, the applicants contend that the Commis-
sion erred in its determination of the duration of the infrin-
gement alleged against the applicants. The Commission, they
argue, has failed to prove that the applicants participated in
the alleged restriction of competition for the entire period in
respect of which they stand accused.

Action brought on 12 December 2008 — X-Technology
Swiss v OHIM (representation of a sock)

(Case T-547/08)

(2009/C 55/58)

Language in which the application was lodged: German

The applicants rely on six pleas in law in support of their
action.

By the first plea, the applicants assert that the decision is vitiated
by a serious lack of reasoning. For that reason,
it should be
annulled by reason of infringement of Article 81 EC and conse-
quential breach of the applicants' rights of defence.

Parties

Applicant: X-Technology Swiss GmbH (represented by A.
Herbertz and R. Jung, lawyers)

By the second plea, the applicants claim that the conditions for
an infringement of Article 81 EC have not been met. The appli-

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