Source: EURLEX
Language: en
Format: md

C 44/44 EN Official Journal of the European Union 22.2.2003

consols and cartridges. The applicant is alleged to have
participated actively in a distribution agreement which impeded exports and to have provided information to assist with
retracing the origins of parallel exports. A fine of
EUR 1,5 million was also imposed on the applicant.

The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:

—
Incorrect application of Article 81EC in so far as concerns
the first distribution agreement concluded between Linea
Gig S.r.l. Nintendo Corporation Ltd. and error in finding
the applicant responsible for the anti-competitive conduct
attributed to the parties involved.

—
Inconsistency within the decision and infringement of
Article 253 EC. It is submitted in this regard that, despite
the fact that relations and dealings between Nintendo and
its retail and wholesale customers and relations and
dealings between John Menzies and its customers were
identical to relations and dealings between Nintendo and
its authorised distributors, the Commission decided to
assess them in different fashions and alleged involvement
in the supposed agreements and concerted practices only
against Nintendo and its national distributors.

— Failure to assess the economic context in which the
supposed agreements and/or concerted practices
occurred. The applicant says that the Commission failed
properly to define the relevant markets, failed to assess
Nintendo’s position in the relevant markets identified —
instead merely evaluating its market shares in certain
Member States — and failed to assess Nintendo’s market
position in 1990, the year in which the distribution
agreements were concluded, or at all during the period
1992 to 1997, instead arbitrarily choosing certain other
years.

—
Infringement of Article 15(2) of Regulation EEC No 17/
62 and breach of the principles of equality and proportionality in the Commission’s assessment of the
intention behind the applicant’s conduct and its fixing of
the amount of the fine, in that it set the fine higher than
the maximum permissible sum, selected the wrong
basic amount and failed to take account of mitigating
circumstances.

**Action brought on 31 December 2002 by Eurocermex**
**S.A. against the Office for Harmonisation in the Internal**
**Market**

**(Case T-399/02)**

(2003/C 44/81)

_(Language of the case: French)_

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 31December 2002 by Eurocermex
S.A., established in Evere, Belgium, represented by André
Bertrand, lawyer.

The applicant claims that the Court should:

—
annul the decision by which the examiner found that the
three-dimensional trade mark at issue was not such as to
constitute a valid trade mark for ‘beers, mineral and
aerated waters and fruit juices’, ‘restaurants, bars and
snack bars’;

—
send the case back to the examiner for prosecution;

—
order the Office to pay the costs.

_Pleas in law and main arguments:_

The trade mark in ques- three-dimensional mark reption: resenting a ‘long neck’ bottle on
the neck of which a piece of
lemon has been plugged, claiming
the colours yellow and green.

Goods or services con- goods in Classes 16, 25, 32
cerned: and 42.

Decision contested 25 and refusal as regards Classbefore grant of regis- es 32 and 42.
tration as regards Classes 16 and the Board of
Appeal:

Grounds pleaded: Infringement of Article 7(1)(b)
and (3) of Regulation (EC) No 40/
94.