CELEX: C2003/070/45
Language: en
Date: 2003-03-22 00:00:00
Title: Case T-15/03: Action brought on 15 January 2003 by José Luis Zuazaga Meabe against Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)

C 70/28               EN                        Official Journal of the European Union                                           22.3.2003
such as the rights of defence, the principle of impartiality and        Action brought on 15 January 2003 by José Luis Zuazaga
fairness, the obligation to state the reasons for a decision and        Meabe against Office for Harmonisation in the Internal
the obligation to make decisions within a reasonable period.                      Market (trade marks and designs) (OHIM)
The applicants furthermore invoke violations of general prin-
ciples of law such as the principle of proportionality, equal
treatment, non bis in idem, legitimate expectations and                                           (Case T-15/03)
transparency, coherence and non-discrimination.
                                                                                                  (2003/C 70/45)
According to the applicants, the fine imposed on them was                                 (Language of the case: Spanish)
unlawful in that its amount was manifestly exorbitant and that
several steps by which this amount was calculated were
individually unlawful. The applicants submit that the setting
of the amount of the fine for gravity was made on the                   An action against Office for Harmonisation in the Internal
manifestly inappropriate basis of the applicants’ share of sales        Market (trade marks and designs) (OHIM) was brought before
of Nintendo’s products. If there were other considerations,             the Court of First Instance of the European Communities on
these were, according to the applicants, insufficiently stated.         15 January 2003 by José Luis Zuazaga Meabe, residing in
                                                                        Bilbao (Spain), represented by José Antonio Calderón Chavero.
The decision then applied an increase for deterrence where,             The applicant claims that the Court should:
according to the applicants, none was appropriate and in a
manner that conflicted with previous policy, was based on an            —     set aside the decision of the Second Board of Appeal of
error of law, involved double counting and infringed the rights               the OHIM of 24 October 2002 in Case R-918/2001;
of defence. The applicants also state that a multiplier of 3 for
deterrence was contrary to the principle of equal treatment,            —     uphold in its entirety the opposition submitted in pro-
without giving sufficient reasons and on the basis of an
                                                                              ceeding B 290157;
inappropriate methodology.
                                                                        —     uphold the arguments submitted by the applicant and
                                                                              allow the appropriate Opposition Division of the OHIM
The applicants furthermore submit that the decision imposed                   to refuse to register the trade mark in question; and
an increase on the fine of 10 % for each full year of
the infringement although the infringement was not of a                 —     order the defendant to pay the costs.
continuous intensity. According to the applicants, the increase
to the fine for the first full year of the infringement is also
contrary to the Commission’s guidelines.
                                                                        Pleas in law and main arguments
With regard to an increase of 75 % to the fine for aggravating          Applicant for the Com-         BANCO BILBAO              VIZCAYA
circumstances, the applicants submit that this is based on              munity trade mark:             ARGENTARIA S.A.
manifest errors of assessment of the applicants’ situation and
behaviour and is contrary to the Commission’s previous policy           The Community trade            ‘BLUE’        —          Application
and practice.                                                           mark concerned:                No 1345974, for goods and ser-
                                                                                                       vices in Classes 9, 36 and 38
                                                                        Proprietor of the right to     The applicant
The applicants finally submit that the granting of a reduction          the trade mark or sign
of 25 % for attenuating circumstances did not give proper               asserted by way of oppo-
regard to the criteria specified in the Leniency Notice and the         sition in the opposition
Commission’s previous policy and practice thereunder. It                proceedings:
was also not consistent with the treatment given to other
undertakings in this case and did not take proper account of            Trade mark or sign             Spanish word mark BILBAO
the behaviour of the applicants who had voluntarily                     asserted by way of oppo-       BLUE for services in Class 36
approached the Commission to inform it of the infringing                sition in the opposition
conduct. The altered assessment of the applicants’ cooperation          proceedings:
during the administrative procedure, also infringed, according
to the applicants, on its rights of defence.                            Decision of the Oppo-          Partial refusal of the application
                                                                        sition Division:               in respect of certain services in
                                                                                                       Class 36 (Insurance services;
                                                                                                       financial affairs; monetary affairs
                                                                                                       and real estate affairs)
 ---pagebreak--- 22.3.2003              EN                          Official Journal of the European Union                                          C 70/29
Decision of the Board of       Appeal upheld and opposition                In support of its application, the applicant submits a violation
Appeal:                        dismissed in its entirety                   of Article 81 EC Treaty and a serious error of assessment in
                                                                           fact and in law, as well as an infringement of essential
Grounds of claim:              Misapplication of Article 8(1)(b)           procedural requirements, such as the duty to state reasons.
                               of Regulation (EC) No 40/94 (like-          According to the applicant, the Commission has not proven
                               lihood of confusion and associ-             to the requisite legal standard that the applicant agreed with
                               ation between the trade marks at            Nintendo to hinder parallel trade.
                               issue)
                                                                           The applicant furthermore submits a breach of the principles
                                                                           of proper administration, such as the principle of equality and
                                                                           the principle of proportionality. In this respect, the applicant
                                                                           also invokes a violation of the duty to state reasons. The
                                                                           applicant states that the Commission needs to have regard to
                                                                           the gravity and the duration of the infringement when
                                                                           establishing the fine. According to the applicant, the Com-
                                                                           mission has not acted in accordance with these principles
                                                                           because there is no convincing evidence that the applicant
Action brought on 17 January 2003 by CD-Contact Data                       entered into an agreement with Nintendo and, in any event,
  against the Commission of the European Communities                       the alleged infringements by the applicant had a much more
                                                                           limited impact and shorter duration than the infringements of
                                                                           Nintendo and its other distributors.
                          (Case T-18/03)
                          (2003/C 70/46)
                   (Language of the case: English)
                                                                           Action brought on 22 January 2003 by KAHLA/Thüringen
                                                                           Porzellan GmbH against the Commission of the European
                                                                                                     Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                          (Case T-20/03)
European Communities on 17 January 2003 by CD-Contact
Data, Burglengenfeld, Germany, represented by Mr J. K. de                                           (2003/C 70/47)
Pree and Mr R. Wesseling, Lawyers.
                                                                                             (Language of the Case: German)
The applicant claims that the Court should:
—     annul the Commission’s decision of 30 October 2002 in                An action against the Commission of the European Communi-
      Cases COMP/35.587 PO Video games, COMP/35.706                        ties was brought before the Court of First Instance of the
      PO Nintendo Distribution and COMP/36.321 Omega-                      European Communities on 22 January 2003 by KAHLA/
      Nintendo in as far as addressed to the applicant (in                 Thüringen Porzellan GmbH, having its registered office in
      particular articles 1 and 3) in whole or in part;                    Kahla (Germany), represented by M. Schütte and S. Zühlke,
                                                                           Rechtsanwälte.
—     order the Commission to pay the costs
                                                                           The applicant claims that the Court should:
                                                                           (1) Set aside Article 1(2) of Commission Decision
                                                                                 C(2002)4040 final of 30 October 2002 concerning State
Pleas in law and main arguments                                                  aid provided by Germany for Kahla Porzellan GmbH and
                                                                                 KAHLA/Thüringen Porzellan GmbH (Proceeding C 62/
                                                                                 2000) in so far as that provision adversely affects the
The applicant is active in the fields of distributing and                        applicant;
republishing entertainment software. Between April and
December 1997, the applicant acted as exclusive distributor                (2) Set aside Article 2 in so far as it relates to the measures
for Nintendo products in Belgium and Luxemburg. The                              referred to in point (1);
Commission alleges that the applicant entered into an agree-
ment and/or restricted practice with Nintendo to restrict                  (3) Order the Commission to pay the costs of the proceed-
parallel export.                                                                 ings.