CELEX: C2000/316/58
Language: en
Date: 2000-11-04 00:00:00
Title: Case T-220/00: Action brought on 23 August 2000 by Cheil Jedang Corporation against the Commission of the European Communities

C 316/30               EN                     Official Journal of the European Communities                                     4.11.2000
Action brought on 18 August 2000 by Ellos AB, a com-                     Action brought on 23 August 2000 by Cheil Jedang
pany incorporated under Swedish law, against the Office                  Corporation against the Commission of the European
          for Harmonisation in the Internal Market                                                Communities
                         (Case T-219/00)                                                         (Case T-220/00)
                        (2000/C 316/57)                                                          (2000/C 316/58)
                   (Language of the case: English)                                          (Language of the case: English)
An action against the Office for Harmonisation in the Internal           An action against the Commission of the European Communi-
Market was brought before the Court of First Instance of the             ties was brought before the Court of First Instance of the
European Communities on 18 August 2000 by Ellos AB, Borås                European Communities on 23 August 2000 by Cheil Jedang
(Sweden) represented by Göran Bergqvist, Albihns Patentbyrå,             Corporation, represented by Alasdair R.M. Bell, Solicitor (Scot-
Göteborg (Sweden).                                                       land), Rony Gerrits, Advocaat (Belgium) and James Killick,
                                                                         Barrister (England and Wales) of White & Case, Brussels.
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
—     annul Decision No. 385/1999-1 of the First Board of
      Appeal of 15 June 2000 and order the Office to register
                                                                         —     annul Commission Decision No. C (2000) 1565 final of
      ELLOS for all classes sought;
                                                                               7 June 2000;
—     in the alternative, order the Office to register ELLOS for
      classes 24 and 35 as sought;                                       —     order the Commission to pay the costs.
—     order the Office to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The applicant in the present case, a company established under
                                                                         the laws of the Republic of Korea, produces lysine in Indonesia,
Trade Mark concerned:         word mark ‘ELLOS’ — Appli-                 some of which is sold in the European Union. It seeks the
                              cation No 88815                            annulment of the Commission decision dated 7 June 2000 —
                                                                         C(2000) 1565 final, concerning a procedure under Article 81
                                                                         of the EC Treaty (Case Comp/36.545/F3 — Amino Acids).
Product or Service:           certain goods and services in              This decision has imposed a fine inter alia to the applicant,
                              classes 24 (textiles), 25 (clothing),      after having considered it had infringed Article 81(1) of the EC
                              35 (customer services for mail-            Treaty and Article 53(1) of the EEA Agreement by participating
                              order sales)                               in agreements on prices, sales volumes and the exchange of
                                                                         individual information on sales volumes of synthetic lysing.
Contested         Decision    refusal of Registration by the
before the Board of           Examiner
Appeal:                                                                  The application challenges the decision, in particular, on the
                                                                         following grounds:
Pleas in law:                 — the trade mark is of enough
                                   distinctive character to be
                                   registered as a Community             —     The fine imposed on the applicant is too severe and thus
                                   trade mark                                  illegal as the Commission failed to take into account a
                                                                               series of elements either as a reduction in the duration of
                              — the office has failed to take                  the infringement or as a mitigation factor.
                                   into account that there are
                                   registered trade marks con-
                                   sisting of and containing the         —     The decision is contrary to the applicant’s legitimate
                                   word ‘ellos’ in Spain.                      expectations as well as to fundamental principles of EC
                                                                               law, as the Commission changed the applicable rules (i.e.
                                                                               the Commission Guidelines on the setting of fines (1))
                                                                               during the course of the administrative proceedings to
                                                                               the detriment of the applicant.
 ---pagebreak--- 4.11.2000               EN                      Official Journal of the European Communities                                     C 316/31
—     The decision is inadequately reasoned and is in breach of                  games of chance, by their nature, since they require the
      the principle of proportionality.                                          presence and direct involvement of the customer, cannot
                                                                                 circulate beyond the casino, in striking contrast to other
                                                                                 games of chance such as lotteries, betting on horses, dogs
                                                                                 and so forth. Accordingly, the activity pursued in the
(1) Guidelines on the method of setting fines imposed pursuant to                Casino can never be described as commercial and made
    Article 15 (2) of Regulation No 17 and Article 65 (5) of the ECSC            subject to free competition.
    Treaty, OJ C 9, of 14.1.1998, p. 3.
                                                                           —     Breach of the obligation to provide a statement of
                                                                                 reasons.
                                                                           —     Infringement of the rights of the defence, inasmuch as
                                                                                 the applicant was never mentioned by the Commission
                                                                                 in the documents made public during the procedure.
                                                                                 Since it considered itself excluded from the procedure, it
                                                                                 saw no reason whatsoever to intervene and submit
Action brought on 24 August 2000 by Casinò Municipale                           observations.
di Venezia SpA against Commission of the European
                           Communities
                          (Case T-221/00)
                          (2000/C 316/59)
                                                                           Action brought on 25 August 2000 by Otto Wöhr GmbH
                                                                             against the Commission of the European Communities
                    (Language of the case: Italian)
                                                                                                   (Case T-222/00)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                         (2000/C 316/60)
European Communities on 24 August 2000 by Casinò Munici-
pale di Venezia SpA, represented by Tito Ballerino, of the
Milan Bar.
                                                                                              (Language of the case: German)
The applicant claims that the Court should:                                An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
—     annul Articles 1, 2 and 5 of the decision of the Com-                European Communities on 25 August 2000 by Otto Wöhr
      mission of 25 November 1999 so far as it is concerned                GmbH, of Friolzheim (Federal Republic of Germany), rep-
                                                                           resented by Dr Christofer Hebel and Dr Gesine Walz, Rechtsan-
                                                                           wälte, of Messrs Moosmayer, Hess, Hoffmann & Partner,
—     order the Commission to pay the costs.                               Stuttgart (Federal Republic of Germany).
                                                                           The applicant claims that the Court should:
Pleas in law and main arguments
                                                                           —     annul the defendant’s decision of 26 June 2000 not to
                                                                                 open the main procedure for an examination of State
The decision contested in the present case is the same as in                     aid in favour of Hydraulik Markranstädt GmbH (Case
Case T-218/00 Cooperativa Mare Azzurro and Others v                              No NN 48/98) and Hydraulik Seehausen GmbH (Case
Commission.                                                                      No NN 49/98);
In support of its arguments, the applicant claims:                         —     order the defendant to pay the costs.
—     The conditions laid down in the first paragraph of
                                                                           Pleas in law and main arguments
      Article 87 of the EC Treaty were not met. The applicant
      claims in that regard that, first, Casinò di Venezia retains
      a lawful monopoly, since its activity is not subject                 By the contested decision, the Commission declined to open
      to competition by virtue of statutory protection, and,               the main procedure pursuant to Article 88(2) EC for an
      secondly, that the services provided by the applicant                examination of the compatibility with the common market of
      consist only in making available to customers its gaming             State aid granted by the German authorities to Hydraulik
      areas free of charge. The applicants point out that such             Markranstädt and Hydraulik Seehausen.