Source: EURLEX
Language: en
Format: md

C 70/28 EN Official Journal of the European Union 22.3.2003

such as the rights of defence, the principle of impartiality and
fairness, the obligation to state the reasons for a decision and
the obligation to make decisions within a reasonable period.
The applicants furthermore invoke violations of general principles of law such as the principle of proportionality, equal
treatment, non bis in idem, legitimate expectations and
transparency, coherence and non-discrimination.

According to the applicants, the fine imposed on them was
unlawful in that its amount was manifestly exorbitant and that
several steps by which this amount was calculated were
individually unlawful. The applicants submit that the setting
of the amount of the fine for gravity was made on the
manifestly inappropriate basis of the applicants’ share of sales
of Nintendo’s products. If there were other considerations,
these were, according to the applicants, insufficiently stated.

The decision then applied an increase for deterrence where,
according to the applicants, none was appropriate and in a
manner that conflicted with previous policy, was based on an
error of law, involved double counting and infringed the rights
of defence. The applicants also state that a multiplier of 3 for
deterrence was contrary to the principle of equal treatment,
without giving sufficient reasons and on the basis of an
inappropriate methodology.

The applicants furthermore submit that the decision imposed
an increase on the fine of 10 % for each full year of
the infringement although the infringement was not of a
continuous intensity. According to the applicants, the increase
to the fine for the first full year of the infringement is also
contrary to the Commission’s guidelines.

With regard to an increase of 75 % to the fine for aggravating
circumstances, the applicants submit that this is based on
manifest errors of assessment of the applicants’ situation and
behaviour and is contrary to the Commission’s previous policy
and practice.

The applicants finally submit that the granting of a reduction
of 25 % for attenuating circumstances did not give proper
regard to the criteria specified in the Leniency Notice and the
Commission’s previous policy and practice thereunder. It
was also not consistent with the treatment given to other
undertakings in this case and did not take proper account of
the behaviour of the applicants who had voluntarily
approached the Commission to inform it of the infringing
conduct. The altered assessment of the applicants’ cooperation
during the administrative procedure, also infringed, according
to the applicants, on its rights of defence.

**Action brought on 15 January 2003 by José Luis Zuazaga**
**Meabe against Office for Harmonisation in the Internal**
**Market (trade marks and designs) (OHIM)**

**(Case T-15/03)**

(2003/C 70/45)

_(Language of the case: Spanish)_

An action against Office for Harmonisation in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
15 January 2003 by José Luis Zuazaga Meabe, residing in
Bilbao (Spain), represented by José Antonio Calderón Chavero.

The applicant claims that the Court should:

—
set aside the decision of the Second Board of Appeal of
the OHIM of 24 October 2002 in Case R-918/2001;

—
uphold in its entirety the opposition submitted in proceeding B 290157;

—
uphold the arguments submitted by the applicant and
allow the appropriate Opposition Division of the OHIM
to refuse to register the trade mark in question; and

—
order the defendant to pay the costs.

_Pleas in law and main arguments_

Applicant for the Com- BANCO BILBAO VIZCAYA
munity trade mark: ARGENTARIA S.A.

The Community trade ‘BLUE’ — Application
mark concerned: No 1345974, for goods and services in Classes 9, 36 and 38

Proprietor of the right to The applicant
the trade mark or sign
asserted by way of opposition in the opposition
proceedings:

Trade mark or sign Spanish word mark BILBAO
asserted by way of oppo- BLUE for services in Class 36
sition in the opposition
proceedings:

Decision of the Oppo- Partial refusal of the application
sition Division: in respect of certain services in
Class 36 (Insurance services;
financial affairs; monetary affairs
and real estate affairs)

22.3.2003 EN Official Journal of the European Union C 70/29

Decision of the Board of Appeal upheld and opposition
Appeal: dismissed in its entirety

Grounds of claim: Misapplication of Article 8(1)(b)
of Regulation (EC) No 40/94 (likelihood of confusion and association between the trade marks at
issue)

**Action brought on 17 January 2003 by CD-Contact Data**
**against the Commission of the European Communities**

**(Case T-18/03)**

(2003/C 70/46)

_(Language of the case: English)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 17 January 2003 by CD-Contact
Data, Burglengenfeld, Germany, represented by Mr J. K. de
Pree and Mr R. Wesseling, Lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision of 30 October 2002 in
Cases COMP/35.587 PO Video games, COMP/35.706
PO Nintendo Distribution and COMP/36.321 OmegaNintendo in as far as addressed to the applicant (in
particular articles 1 and 3) in whole or in part;

—
order the Commission to pay the costs

_Pleas in law and main arguments_

The applicant is active in the fields of distributing and
republishing entertainment software. Between April and
December 1997, the applicant acted as exclusive distributor
for Nintendo products in Belgium and Luxemburg. The
Commission alleges that the applicant entered into an agreement and/or restricted practice with Nintendo to restrict
parallel export.

In support of its application, the applicant submits a violation
of Article 81 EC Treaty and a serious error of assessment in
fact and in law, as well as an infringement of essential
procedural requirements, such as the duty to state reasons.
According to the applicant, the Commission has not proven
to the requisite legal standard that the applicant agreed with
Nintendo to hinder parallel trade.

The applicant furthermore submits a breach of the principles
of proper administration, such as the principle of equality and
the principle of proportionality. In this respect, the applicant
also invokes a violation of the duty to state reasons. The
applicant states that the Commission needs to have regard to
the gravity and the duration of the infringement when
establishing the fine. According to the applicant, the Commission has not acted in accordance with these principles
because there is no convincing evidence that the applicant
entered into an agreement with Nintendo and, in any event,
the alleged infringements by the applicant had a much more
limited impact and shorter duration than the infringements of
Nintendo and its other distributors.

**Action brought on 22January 2003by KAHLA/Thüringen**
**Porzellan GmbH against the Commission of the European**
**Communities**

**(Case T-20/03)**

(2003/C 70/47)

_(Language of the Case: German)_

An action against the Commission of the European Communities was brought before the Court of First Instance of the
European Communities on 22 January 2003 by KAHLA/
Thüringen Porzellan GmbH, having its registered office in
Kahla (Germany), represented by M. Schütte and S. Zühlke,
Rechtsanwälte.

The applicant claims that the Court should:

(1) Set aside Article 1(2) of Commission Decision
C(2002)4040 final of 30 October 2002 concerning State
aid provided by Germany for Kahla Porzellan GmbH and
KAHLA/Thüringen Porzellan GmbH (Proceeding C 62/
2000) in so far as that provision adversely affects the
applicant;

(2) Set aside Article 2 in so far as it relates to the measures
referred to in point (1);

(3) Order the Commission to pay the costs of the proceedings.