Source: EURLEX
Language: en
Format: md

5.1.2002 EN Official Journal of the European Communities C 3/33

_Pleas in law and main arguments_ **Action brought on 24 September 2001 by Houghton**
**Durferrit GmbH against the Office for Harmonisation in**
**the Internal Market**

The Applicants are the owner and the licensee of the trade
**(Case T-224/01)**
mark ‘MILD SEVEN’, used as a cigarette brand worldwide and
protected as intellectual property. The Applicants fear that the
prohibition, against using descriptors indicating that a tobacco (2002/C 3/58)
product is less harmful than others, contained in Article 7 of
Directive 2001/37, will deprive the Applicants of the possi_(Language of the case: English)_
bility of marketing their brand ‘MILD SEVEN’ in the European
Union.

An action against the Office for Harmonisation in the Internal
In support of their application, the Applicants claim that there Market was brought before the Court of First Instance of the
is no sufficient legal basis for the adaptation of Article 7 of the European Communities on 24 September 2001 by Houghton
Directive. The Directive in question is based on Articles 95 Durferrit GmbH, represented by Ms Patricia Koch Moreno of
and 133 of the EC Treaty. Neither of them provides, according Madrid (Spain). Kolone Corporation was also a party to the
to the Applicants, a sufficient basis for Article 7 of this proceedings before the Board of Appeal
Directive. Article 133 does not apply since the common
commercial policy has no relevance to Article 7. Article 95 EC
Treaty does not provide a legal basis either since there is no The applicant claims that the Court should:
need to harmonise legislation on this point for the establish
—
ment of the internal market. According to the Applicants, declare invalid the Decision no. 949/1999 dated 15 Octothere is no barrier to trade that needs to be removed. Further, ber 1999 of the Opposition Division of the Office for
the Applicants claim that Article 7 of the Directive violates Harmonisation in the Internal Market in opposition
Article 152(4)(c) EC Treaty. According to the Applicants, procedure B4905, and the decision of the First Board of
Article 95 EC Treaty is being used as a legal basis for the Appeal dated 6 July 2001 that dismissed the remedy
circumvention of the prohibition contained in Article 152(4)(c) of Appeal filed by the applicant against the previous
EC Treaty to harmonise legislation designed to protect and resolution
improve human health.

—
declare incompatible the Community trade mark filed by
Kolene Corporation, no. 40.568 NU-TRIDE, in classes 1
and 40, on the grounds of its incompatibility with the
The Applicants also claim that Article 7 of the Directive earlier trade mark belonging to the applicant,
violates their right to property and the principle of pro- no. 764.560, in classes 1, 7 and 11
portionality since it would deprive the Applicants of the use
of their trade mark in the European market. According to the — refuse the registration of Community trade mark
Applicants, Article 7 is not an appropriate means by which to no. 40.568 NU-TRIDE in classes 1 and 40
attain the objective of this Article, which is to promote health
and consumer protection. The Applicants claim that the use —
order payment of the costs of these proceedings by
of descriptors provides the consumer with information that
the holder of the foregoing Community trade mark
allows him to choose to smoke cigarettes with a lower tar and
application, Kolene Corporation.
nicotine content. Article 7 is in any event not the least
restrictive method, since provision could have been made for
the protection of existing trade marks.

_Pleas in law and main arguments_

The Applicants claim further that Article 7 of the Directive Applicant for the Com- Kolone Corporation
violates the principle of equal treatment. The Applicants make munity trade mark:
clear that they are the only tobacco producers in the European
Union who would be deprived of the use of a brand as a The Community trade Verbal mark ‘NU-TRIDE’ —
consequence of Article 7 of the Directive. mark concerned: Application no. 40.568, relating
to goods in classes 1 and 40
(chemicals for use in the treatment
of metals and metal treatment)
Finally, the Applicants submit that the grounds upon which
Article 7 of the Directive is based are insufficient. Proprietor of the right to The Applicant
the trade mark or sign
asserted by way of opposition in the opposition
proceedings:

C 3/34 EN Official Journal of the European Communities 5.1.2002

Trade mark or sign Registered German trade mark by the authorities in the USA had ended _inter alia_ with the
asserted by way of oppo- ‘TUFFTRIDE’ in classes 1, 7 and 11 imposition of a fine on the applicant.
sition in the opposition
proceedings:
In response to the statement of objections the applicant stated
Decision of the Oppo- rejection of the Opposition to the defendant that it expressly did not contest the facts set
sition Division: out by the defendant. At the same time it submitted that the
fine imposed in the USA should be credited when the
Decision of the Board of rejection of the Appeal by the defendant calculated the fines or at least be appropriately taken
Appeal: applicant into account.

Grounds of claim: Articles 8(1)(b) and 7(1)(f) of
In the contested decision the defendant alleged that the
Regulation (EC) no. 40/94 ( [1] )
applicant had participated in a cartel and, when it calculated
the fine, assumed that there was a world market in graphite
electrodes. A fine of Euro 80,2 million was imposed on the
( [1] ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark (OJ L 11, p. 1). applicant.

The applicant contests the decision has a whole in law. It
submits that the defendant did not take into account the
fact that the applicant had already been penalised in other
jurisdictions for the same act. In particular, it gave no credit at
all for the fines already imposed in other States and did not
take account of the applicability of the rule against double
**Action brought on 2 October 2001 by SGL Carbon AG**
punishment (‘ne bis im idem’). As a separate matter, the
**against the Commission of the European Communities**
defendant infringed Article 253 EC and Article 15(2) of
Regulation No 17/62 because it wrongly calculated the fine in
**(Case T-239/01)** the light of the application of the guidelines on the method of
setting fines( [1] ) and the notice on the non-imposition or
reduction of fines in cartel cases( [2] ). It infringed central
(2002/C 3/59)
principles of equal treatment and proportionality and committed errors of law and of assessment to the detriment of the
_(Language of the case: German)_ applicant at each stage of calculating the fine. Moreover, the
defendant misassessed _inter alia_ the extent of the applicant’s
cooperation.

An action against the Commission of the European Communities was brought before the Court of First Instance of the ( [1] ) OJ C 9 of 14.1.1998,p. 3.
European Communities on 2 October 2001 by SGL Carbon ( [2] ) OJ C 207 of 18.7.1996, p. 4.
AG, Wiesbaden (Germany), represented by M. Klusmann,
F. Wiemer and C. Canenbley, lawyers.

The applicant claims that the Court should:

—
annul decision C(2001) 1986 final of 18 July 2001; **Action brought on 3 October 2001 by Rica Foods (Free**
**Zone) N.V. against the Commission of the European**
— in the alternative, reduce appropriately the amount of the **Communities**
fine imposed on the applicant in the contested decision;

**(Case T-242/01)**

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

(2002/C 3/60)

_Pleas in law and main arguments_ _(Language of the case: Dutch)_

The applicant manufactures various carbon and graphite
products, including graphite electrodes. In the course of a An action against the Commission of the European Communiprocedure seeking information under Article 11 of Regulation ties was brought before the Court of First Instance of the
No 17/62 concerning suspected anti-competitive agreements European Communities on 3 October 2001 by Rica Foods
between undertakings on the market for graphite electrodes, (Free Zone) N.V., established in Oranjestad (Aruba), representthe applicant stated to the defendant that it was willing to ed by G. van der Wal, with an address for service in
cooperate in the investigation of the case. A similar procedure Luxembourg.