Case T-563/08: Action brought on 16 December 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CM Capital Markets)
Date: 2008-12-16
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

21.2.2009

EN

Official Journal of the European Union

C 44/63

In support of its claims, the applicants submit that, in the first
instance, it has not been established that Repsol YPF Lubricantes
y especialidades S.A. (Rylesa) was involved in certain identified
conduct which has been dealt with on an individual basis for
the purposes of imposing a penalty. In particular, the Decision
did not produce sufficient evidence to show that Rylesa took
part in an agreement to share customers and markets.

the technical meetings was not

Nor does the Decision take account of the fact that the purpose
of
to share customers and
markets. Such practices, had they existed, would have occurred,
as some of the companies to which the Decision was addressed
have recognised, within the bilateral and multilateral contacts at
the fringes of the technical meetings. However, in the contested
Decision it is considered unnecessary to investigate such bilateral
and multilateral contacts, as a result of which the applicants
may not be deemed party to the infringement identified by the
Decision.
the Decision does not explain why
Rylesa is deemed liable for such conduct while at the same time
it clears other companies that were present at the technical
meetings put forward as evidence of such conduct.

In any event,

The applicants also contest the criteria used by the Commission
to determine the turnover of the relevant products and therefore
set the penalty applicable. First, the Decision does not precisely
define the products concerned by the infringement. Second, in
accordance with the 2006 Guidelines on the method of setting
fines, applicable to the present case, fines are to be set according
to the value of the sales made by a company during the last full
business year of its participation in an infringement. However,
in the present case, the Commission has departed from that
general rule, and has calculated the value of the fine by reference
to Rylesa's average sales volume between 2001 and 2003. At
no point did the Commission provide any reasons to justify
why, in the case of Rylesa, it disregarded the rules it set itself in
the Guidelines in order to apply a criterion (the average sales
value between the years 2001 and 2003), which, moreover,
substantially prejudices Rylesa. The value of sales to be taken
into account is ultimately that generated in 2003, as the Deci-
sion itself states, since that is the last full year in which the
Commission itself alleges that Rylesa participated in the infringe-
ment.

In the Decision, the Commission considers that any infringe-
ment by Rylesa was terminated by 4 August 2004. However,
there is not the slightest evidence that any infringement by
Rylesa persisted until that date. In particular, Rylesa is not a
party to the agreements or practices adopted in the technical
meetings which took place in the first half of 2004. Any infrin-
gement must be therefore be deemed to have terminated by
January 2004 or May 2004 at the latest.

the contested Decision disregards

Lastly,
the considerable
evidence put forward in the administrative procedure, in which
it was proved that Rylesa is a completely autonomous entity
from its parent company, Repsol Petróleo S.A. In any event,
case-law does not allow the Commission to extend liability for
an infringement committed by a company to the whole of the
group of which it forms part, which is why the liability of
Repsol YPF S.A. is not established.

Action brought on 16 December 2008 — CM Capital
Markets v OHIM — Carbon Capital Markets (CM Capital
Markets)

(Case T-563/08)

(2009/C 44/107)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding, SA (Madrid, Spain),
(represented by: T. Villate Consonni and J. Calderón Chavero,
lawyers)

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

Other party to the proceedings before the Board of Appeal: Carbon
Capital Markets Ltd (London, United Kingdom)

Form of order sought

— Annul the decision of the First Board of Appeal of OHIM of
26 September 2008 in Case R-015/2008-1, which would
lead to the refusal of the contested mark in its entirety;

— Uphold the applicant's claims, and

— Order OHIM to pay the costs of the present proceedings

should they be contested and reject its claims.

Pleas in law and main arguments

Applicant
MARKETS LIMITED.

for a Community

trade mark: CARBON CAPITAL

Community trade mark concerned: The word mark ‘CARBON
CAPITAL MARKETS’ (Application No 4 480 208) for services
in class 36.

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

Mark or sign cited in opposition: The national and Community
figurative marks ‘CAPITAL MARKETS’ for services in class 36.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.