CELEX: C2002/144/111
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-114/02: Action brought on 15 April 2002 by BaByliss SA against the Commission of the European Communities

C 144/56              EN                     Official Journal of the European Communities                                     15.6.2002
Action brought on 6 April 2002 by Matratzen Concord                     Decision of the Oppo-         Rejection of the application for
GmbH against Office for Harmonisation in the Internal                   sition Division:              goods in classes 20 and 24, rejec-
              Market (Trade marks and designs)                                                        tion of the opposition as regards
                                                                                                      goods in class 10
                        (Case T-105/02)                                 Decision of the Board of      Dismissal of the applicant’s appeal
                                                                        Appeal:
                       (2002/C 144/110)                                 Grounds of claim:             —    No likelihood of confusion
                                                                                                           under Article 8 of Regulation
                                                                                                           (EC) No 40/94 (1);
(Language of the case to be determined in accordance with
Article 131(2) of the Rules of Procedure — Language in which the                                      —    No similarity between the
                 application was drafted: German)                                                          opposing marks;
                                                                                                      —    Incorrect division of the tra-
                                                                                                           de mark into its individual
                                                                                                           components;
An action against the Office for Harmonisation in the Internal
Market (Trade marks and designs) was brought before the                                               —    Failure to follow the case-
Court of First Instance of the European Communities on                                                     law of the Court of Justice
6 April 2002 by Matratzen Concord GmbH, of Cologne                                                         concerning the overall
(Germany), represented by W.-W. Wodrich, lawyer, with an                                                   impression of the trade
address for service in Luxembourg. The other party before the                                              mark;
Board of Appeal was Hukla Germany, S.A., of Castellbisbal
(Spain).                                                                                              —    Right of a competitor in the
                                                                                                           market to combine the desig-
                                                                                                           nation of his main products
The applicant claims that the Court should:                                                                with the name of his firm;
                                                                                                      —    Opposing mark not capable
—     Set aside the decision of the defendant (Second Board of                                             of protection.
      Appeal) of 25 January 2002 (reference of the appeal R
      1045/2000-2);
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
—     Dismiss the opposition of the opponent of 17 December
      1998 (reference B 115 057);
—     Order the defendant and the opponent to pay all the
      costs of the procedure before the Opposition Division
      and the Board of Appeal and of the present proceedings.
                                                                        Action brought on 15 April 2002 by BaByliss SA against
                                                                              the Commission of the European Communities
                                                                                                 (Case T-114/02)
Pleas in law and main arguments
                                                                                                (2002/C 144/111)
Applicant for the Com-         The applicant
munity trade mark:                                                                        (Language of the Case: French)
Community trade mark           Figurative       trade       mark
applied for:                   ‘MATRATZEN CONCORD’ for                  An action against the Commission of the European Communi-
                               goods in classes 10, 20 and 24 —         ties was brought before the Court of First Instance of the
                               Application No 739722                    European Communities on 15 April 2002 by BaByliss SA, of
                                                                        Montrouge (France), represented by Jacques-Philippe Gunther,
Proprietor of the right to     Hukla Germany, S.A.                      lawyer.
the trade mark or sign
asserted by way of oppo-                                                The applicant claims that the Court should:
sition in the opposition
proceedings:                                                            —     annul the decision adopted by the Commission on
                                                                              8 January 2002 in the case of COMP/M.2621 SEB v
Trade mark or sign             Spanish word trade mark                        MOULINEX;
asserted by way of oppo-       ‘MATRATZEN’ for goods in
sition:                        class 20                                 —     order the Commission to pay all the costs.
 ---pagebreak--- 15.6.2002              EN                   Official Journal of the European Communities                                    C 144/57
Pleas in law and main arguments                                        Fourthly, the applicant considers that the Commission erred
                                                                       in law by failing to examine the extent to which the derisory
                                                                       sum paid and the financial aid provided by the French State
                                                                       was likely to strengthen even further SEB’s position on the
                                                                       relevant markets.
SEB and Moulinex are active in the design, manufacture and
sale of domestic electric appliances worldwide. A proposed
merger of the two companies was notified to the Commission.
The applicant in this case informed the Commission of its
reservations in regard to the merger. The Commission none
the less declared the transaction compatible with the common
market and with the EEA Agreement, subject to compliance
with the undertakings given. The applicant is challenging that
decision. In support of its application the applicant relies first
of all on an infringement of essential procedural requirements         Action brought on 15 April 2002 by BaByliss SA against
in accepting the undertakings proposed by SEB late. Undertak-                 the Commission of the European Communities
ings must be submitted within three weeks from notification
of a transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was                                    (Case T-114/02)
notified. The applicant claims that those undertakings could in
no circumstances be regarded as enhancing the original
undertakings but constituted new undertakings.                                                (2002/C 144/112)
                                                                                         (Language of the Case: French)
Secondly, the applicant claims that the Commission erred in
law in deciding to authorise the operation without carrying            An action against the Commission of the European Communi-
out an in-depth investigation. The applicant claims that the           ties was brought before the Court of First Instance of the
conditions for authorisation in phase one were not met. The            European Communities on 15 April 2002 by BaByliss SA, of
undertakings proposed did not definitively resolve any serious         Montrouge (France), represented by Jacques-Philippe Gunther,
doubts as to the compatibility of the transaction with the             lawyer.
common market, as required by the Commission Notice on
remedies.
                                                                       The applicant claims that the Court should:
                                                                       —     annul the decision adopted by the Commission on
                                                                             8 January 2002 in the case of COMP/M.2621 SEB v
                                                                             MOULINEX;
Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed          —     order the Commission to pay all the costs.
on SEB are insufficient to remove the competition concerns.
The Commission therefore authorised the transaction without
any undertakings on certain markets where there were serious
competition concerns. Moreover, an undertaking to grant a
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period           Pleas in law and main arguments
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect           SEB and Moulinex are active in the design, manufacture and
of strengthening SEB/Moulinex’s position on that market.               sale of domestic electric appliances worldwide. A proposed
Finally, the fact that the Commission agreed to the same trade         merger of the two companies was notified to the Commission.
mark being used by different companies within the European             The applicant in this case informed the Commission of its
Union is liable to lead to coordinated behaviour by SEB/               reservations in regard to the merger. The Commission none
Moulinex and the licensees.                                            the less declared the transaction compatible with the common