CELEX: C2003/055/97
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-12/03: Action brought on 16 January 2003 by Itochu Corporation against the Commission of the European Communities

8.3.2003                EN                          Official Journal of the European Union                                             C 55/41
Pleas in law and main arguments                                             Pleas in law and main arguments
Applicant for regis-            Jean-Pierre Koubi
tration of a Community                                                      The applicant is a major general trading company in Japan.
trade mark:                                                                 Itochu Hellas, a local subsidiary of Itochu Europe and only
                                                                            indirectly a subsidiary of the applicant, concluded a distri-
Community mark con-             The word mark ‘conforflex’ for              bution agreement with Nintendo. The applicant indicates that
cerned:                         certain products in Class 20 (bed-          the distribution and sale of game consoles was never one of its
                                room furniture) (No 1171172).               core activities and that such activities were at the sole discretion
                                                                            of local subsidiaries, who operate with a large degree of
Marks put forward as            The national marks ‘flex’ and ‘flex’        independence.
grounds for refusal             for certain products in Class 20
under the opposition            (including beds, mattresses and
procedure                       pillows, bedding articles).                 In support of its application, the applicant claims that it cannot
                                                                            be held liable for an alleged infringement of Article 81 (1) of
Owner of the marks put          Fabricas Lucia Antonio Betere,              the EC Treaty on behalf of Itochu Hellas and, therefore, that it
forward as grounds for          S.A.
                                                                            is not the correct addressee of the contested decision. Accord-
refusal                                                                     ing to the applicant, the Commission should prove that a
Decision of the Oppo-           Dismissal of the opposition.                mother company exerted decisive influence over its subsidiary
sition Division:                                                            in order to hold the former liable for the acts of the subsidiary.
Decision of the Board of        Annulment of the decision of the
Appeal:                         Opposition Division and rejection           The applicant claims furthermore that the fine should be
                                of the application for registration         annulled or substantially reduced. The applicant invokes a lack
                                of the Community mark.                      of proper reasoning and an infringement of the principle of
                                                                            proportionality and equal treatment. The applicant claims that
Pleas in law:                   Infringement of the concept of              the Commission treated the applicant in the same way as other
                                risk of confusion.                          undertakings without enabling the applicant to assess the
                                                                            figures on which the Commission relied.
                                                                            The applicant submits that the Commission had no grounds
                                                                            to increase the fine to ensure deterrence considering that
                                                                            Itochu Hellas should have been the addressee of the decision.
Action brought on 16 January 2003 by Itochu Corpor-                         The applicant also claims that an increase for deterrence on
ation against the Commission of the European Communi-                       account of the applicant’s size and resources constitutes an
                                 ties                                       infringement of the principles of proportionality and equal
                                                                            treatment.
                           (Case T-12/03)
                          (2003/C 55/97)                                    Moreover, the applicant invokes a manifest error of assessment
                                                                            and a violation of the principle of proportionality insofar as
                    (Language of the case: English)                         the fine was increased to take into account the duration of the
                                                                            alleged infringement. The applicant also submits that the
                                                                            Commission should have applied a smaller increase by percent-
                                                                            age on account of duration as Itochu Hellas’ participation was
An action against the Commission of the European Communi-                   only passive.
ties was brought before the Court of First Instance of the
European Communities on 16 January 2003 by Itochu Corpor-
ation, Tokyo, Japan, represented by Mr Gerwin Van Gerven                    The applicant also puts forward that the Commission has
and Mr Thomas Franchoo, Lawyers.                                            infringed Article 253 of the EC Treaty and the principle of
                                                                            proportionality because it has refused to consider certain
The applicant claims that the Court should:                                 attenuating circumstances, like the very limited and exclusively
                                                                            passive role of Itochu Hellas and the fact that Itochu Hellas did
—     annul Articles 1, 3 and 5 of Commission decision                      not implement the restrictive practices. Furthermore, according
      C(2002) 4072 final of 30 October 2002 in Cases                        to the applicant, the Commission has violated the principle of
      COMP/35.587 PO Video games, COMP/35.706 Nintendo                      equal treatment by accepting attenuating circumstances in
      Distribution and COMP/36.321 Omega-Nintendo, inso-                    favour of other addressees and not for the applicant.
      far as it finds an infringement on Article 81 (1) of the EC
      Treaty, imposes a fine upon and addresses the decision to
      the applicant, or alternatively, to substantially reduce that         The applicant finally invokes a violation of Article 15 (2) of
      fine;                                                                 Regulation 17 (1) insofar as the Commission imposed a fine
                                                                            that exceeds 10 % of Itochu Hellas’ turnover in the preceding
—     order the Commission to pay the costs.                                business year and a violation of its rights of defence insofar
 ---pagebreak--- C 55/42                 EN                          Official Journal of the European Union                                     8.3.2003
as the Commission changed the legal assessment of the                       Removal from the register of Joined Cases T-100/02 and
infringements without offering the applicant the possibility of                                        T-102/02 (1)
responding to it during the administrative proceedings.
                                                                                                     (2003/C 55/100)
( 1) EEC Council: Regulation No 17: First Regulation implementing                              (Language of the Case: English)
     Articles 85 and 86 of the Treaty (OJ 13 of 21.2.1962, p. 204).
                                                                            By order of 2 December 2002 the President of the Fifth
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Joined
                                                                            Cases T-100/02 and T-102/02: EVC International N.V. v
                                                                            Commission of the European Communities.
         Removal from the register of Case T-96/01 (1)
                                                                            (1 ) OJ C 156 of 29.06.2002.
                           (2003/C 55/98)
                     (Language of the Case: Greek)
                                                                                    Removal from the register of Case T-170/02 (1)
By order of 13 December 2002 the President of the Second
Chamber of the Court of First Instance of the European                                               (2003/C 55/101)
Communities ordered the removal from the register of Case
T-96/01: Rodolfos Maslias v European Parliament.                                                (Language of the Case: French)
( 1) OJ C 200 of 14.07.2001.
                                                                            By order of 6 December 2002 the President of the Second
                                                                            Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Case
                                                                            T-170/02: Maria Rosaria Ragazzini v European Parliament.
                                                                            (1 ) OJ C 202 of 24.08.2002.
Removal from the register of Joined Cases T-99/02 and
                             T-101/02 ( 1)
                           (2003/C 55/99)
                                                                                   Removal from the register of Case T-295/02 ( 1).
                    (Language of the Case: English)
                                                                                                     (2003/C 55/102)
                                                                                                (Language of the Case: Dutch)
By order of 2 December 2002 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Joined                 By order of 13 December 2002 the President of the Third
Cases T-99/02 and T-101/02: Ineos N.V. v Commission of the                  Chamber of the Court of First Instance of the European
European Communities.                                                       Communities ordered the removal from the register of Case
                                                                            T-295/02: Koninklijke BAM NBM N.V. v Commission of the
( 1) OJ C 156 of 29.06.2002.                                                European Communities.
                                                                            (1 ) OJ C 289 of 23.11.2002.