CELEX: C2003/101/80
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-53/03: Action brought on 14 February 2003 by BPB plc against the Commission of the European Communities

26.4.2003             EN                          Official Journal of the European Union                                             C 101/45
Action brought on 11 February 2003 by Pi-Design AG                                                       —      There is no basis for stating
against the Office for Harmonisation in the Internal                                                            that the cafetière in question
          Market (Trade Marks and Designs) (OHIM)                                                               is a manifestation of the ‘usu-
                                                                                                                al shape of the product’.
                         (Case T-51/03)
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 1994 L 11, p. 1).
                        (2003/C 101/79)
                  (Language of the case: Danish)
                                                                          Action brought on 14 February 2003 by BPB plc against
An action against the Office for Harmonisation in the Internal                   the Commission of the European Communities
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
                                                                                                     (Case T-53/03)
11 February 2003 by Pi-Design AG, Triengen (Switzerland),
represented by Jacob S Ørndrup, lawyer
                                                                                                    (2003/C 101/80)
The applicant claims that the Court should:                                                   (Language of the case: English)
—     annul the decision of the defendant of 5 December 2002
      in Case No R452/2001-2 concerning EC trade mark
                                                                          An action against the Commission of the European Communi-
      application No 000353854;
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 February 2003 by BPB plc,
—     order the defendant to pay the costs.                               Slough, United Kingdom, represented by Thomas Sharpe QC
                                                                          and Mr Alexandre Nourry, Solicitor with an address for service
                                                                          in Luxembourg.
Pleas in law and main arguments                                           The applicant claims that the Court should:
Community trade mark          A three-dimensional trade mark              —     Annul Articles 1 and 2 of the contested Decision insofar
sought:                       in the form of a ‘cafetière’ (push-               as it relates to BPB
                              down coffee pot) — application
                              No 353854                                   —     In the alternative, annul Article 3 of the Decision insofar
                                                                                as it relates to BPB or, in the further alternative, reduce
                                                                                the fine imposed on BPB to such amount as the Court
Goods or services:            Nice classification 21 (non-elec-
                              tric coffee makers)                               determines in accordance with law
                                                                          —     Subject to the annulment of Article 3 of the Decision or
Decision before        the    Refusal of registration by the
                                                                                the reduction in the fine, order repayment of the principal
Board of Appeal:              examiner                                          sum paid by BPB together with such interest as the Court
                                                                                should determine in accordance with law
Decision of Board of          Dismissal of appeal
Appeal:                                                                   —     Order the Commission to pay BPB’s costs.
Pleas in law:                 —     The defendant’s decision is
                                    contrary to Article 7(1)(b) of
                                    Regulation No 40/94 (1):              Pleas in law and main arguments
                              —     The trade mark has the
                                    necessary           distinctive       By its decision which forms the subject matter of the present
                                    character.                            action, the defendant found that the applicant and three
                                                                          other undertakings, namely Gebrüder Knauf Westdeutsche
                              —     The fact that the plaintiff’s         Gipswerke KG, Société Lafarge SA and Gyproc Benelux, had
                                    cafetière design is copied            infringed Article 81 paragraph 1 EC by participating in a
                                    should not in itself lead to          complex and continuing agreement from 1992 until 1998
                                    the trade mark application’s          with the object of stabilising the principal EU markets in
                                    being refused on grounds of           plasterboard. The applicant denies that any agreement of the
                                    lack of distinctive character.        type alleged existed.
 ---pagebreak--- C 101/46               EN                       Official Journal of the European Union                                         26.4.2003
In support of its application the applicant submits the                 Action brought on 14 February 2003 by Lafarge SA
following contentions:                                                      against Commission of the European Communities
                                                                                                  (Case T-54/03)
—     the defendant violated the rights of the defence and the
      principle of equality of arms. More specifically, the                                      (2003/C 101/81)
      applicant alleges that the defendant used information
      obtained from a third party as well as information
      contained in the replies of the other parties to the                                 (Language of the case: French)
      defendant, and that all of that information was not
      revealed to the applicant.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
—     the evidence advanced by the defendant does not substan-          European Communities on 14 February 2003 by Lafarge SA,
      tiate its claims and the defendant has failed to meet the         established in Paris, represented by Henry Lesguillons, Nathalie
      high standard of proof which the applicant considers is           Jalbert-Doury, Jean-Cyril Bermond, Antoine Winckler, François
      required in such proceedings.                                     Brunet and Igor Simic, lawyers.
                                                                        The applicant claims that the Court should:
—     the defendant made manifest errors in its assessment of
      information, leading it to an incorrect decision and
      misuse of its powers.                                             —     annul the decision adopted by the Commission of the
                                                                              European Communities on 27 November 2002 in Case
                                                                              COMP/E-1/37.152 in so far as it concerns Lafarge SA and
                                                                              Lafarge Gypsum International SA;
—     the defendant violated Article 253, EC, in that it failed to
      provide sufficient or adequate reasons for its decision           —     in the alternative, annul or reduce the amount of the fine
                                                                              imposed on it by that decision;
                                                                        —     order the Commission of the European Communities to
                                                                              pay the costs.
The applicant further contends that in setting the fine the
defendant misapplied its powers under Article 15, paragraph 2,
of Regulation 17/62 and its own Guidelines on setting
fines, violated the principles of Community law and acted               Pleas in law and main arguments
unreasonably. In particular, the applicant contends that:
                                                                        The decision which is the subject of the present application
                                                                        concerns an agreement or arrangement between BPB, Gebruder
—     the basic amounts of the fine imposed for gravity and             Knauf Westdeutsche Gipswerke AG, Gyproc Benelux and the
      duration are disproportionate, arbitrary, and contrary to         applicant on the plasterboard market.
      the principles of proportionality and equal treatment
                                                                        In support of its claims, the applicant alleges that the
                                                                        Commission infringed Article 81 of the EC Treaty and
—     the 50 % uplift for aggravating circumstances is excessive        committed manifest errors of assessment inasmuch as the
      and disproportionate and offends the principle of equal           decision finds that Lafarge SA committed a single complex
      treatment                                                         continuous infringement, which the applicant denies.
—     the defendant failed to take account of any attenuating           The applicant also takes the view that:
      circumstances
                                                                        —     the defendant infringed its right to a fair hearing guaran-
                                                                              teed under Article 6 of the ECHR;
—     the defendant erred in its application of its Leniency            —     the defendant infringed essential procedural requirements
      Notice in violation of the principles of equal treatment                and rights of the defence. In that respect, the applicant
      and legitimate expectation                                              claims that the defendant used statements from the parties
                                                                              made during the procedure and that the proceedings were
                                                                              vitiated by constant infringements of the principle of
                                                                              equality of arms;
                                                                        —     the defendant infringed the principle of impartiality.