CELEX: C2003/044/81
Language: en
Date: 2003-02-22 00:00:00
Title: Case T-399/02: Action brought on 31 December 2002 by Eurocermex S.A. against the Office for Harmonisation in the Internal Market

C 44/44                 EN                       Official Journal of the European Union                                       22.2.2003
consols and cartridges. The applicant is alleged to have                 Action brought on 31 December 2002 by Eurocermex
participated actively in a distribution agreement which imped-           S.A. against the Office for Harmonisation in the Internal
ed exports and to have provided information to assist with                                           Market
retracing the origins of parallel exports. A fine of
EUR 1,5 million was also imposed on the applicant.
                                                                                                 (Case T-399/02)
                                                                                                  (2003/C 44/81)
The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the                                 (Language of the case: French)
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:
                                                                         An action against the Office for Harmonisation in the Internal
—     Incorrect application of Article 81 EC in so far as concerns       Market was brought before the Court of First Instance of the
      the first distribution agreement concluded between Linea           European Communities on 31 December 2002 by Eurocermex
      Gig S.r.l. Nintendo Corporation Ltd. and error in finding          S.A., established in Evere, Belgium, represented by André
      the applicant responsible for the anti-competitive conduct         Bertrand, lawyer.
      attributed to the parties involved.
                                                                         The applicant claims that the Court should:
—     Inconsistency within the decision and infringement of
      Article 253 EC. It is submitted in this regard that, despite
                                                                         —     annul the decision by which the examiner found that the
      the fact that relations and dealings between Nintendo and
                                                                               three-dimensional trade mark at issue was not such as to
      its retail and wholesale customers and relations and
                                                                               constitute a valid trade mark for ‘beers, mineral and
      dealings between John Menzies and its customers were
                                                                               aerated waters and fruit juices’, ‘restaurants, bars and
      identical to relations and dealings between Nintendo and
                                                                               snack bars’;
      its authorised distributors, the Commission decided to
      assess them in different fashions and alleged involvement
      in the supposed agreements and concerted practices only            —     send the case back to the examiner for prosecution;
      against Nintendo and its national distributors.
                                                                         —     order the Office to pay the costs.
—     Failure to assess the economic context in which the
      supposed agreements and/or concerted practices
      occurred. The applicant says that the Commission failed
      properly to define the relevant markets, failed to assess          Pleas in law and main arguments:
      Nintendo’s position in the relevant markets identified —
      instead merely evaluating its market shares in certain
                                                                         The trade mark in ques-       three-dimensional mark rep-
      Member States — and failed to assess Nintendo’s market
                                                                         tion:                         resenting a ‘long neck’ bottle on
      position in 1990, the year in which the distribution
                                                                                                       the neck of which a piece of
      agreements were concluded, or at all during the period
                                                                                                       lemon has been plugged, claiming
      1992 to 1997, instead arbitrarily choosing certain other
                                                                                                       the colours yellow and green.
      years.
                                                                         Goods or services con-        goods in Classes 16, 25, 32
                                                                         cerned:                       and 42.
—     Infringement of Article 15(2) of Regulation EEC No 17/
      62 and breach of the principles of equality and pro-               Decision        contested     25 and refusal as regards Class-
      portionality in the Commission’s assessment of the                 before grant of regis-        es 32 and 42.
      intention behind the applicant’s conduct and its fixing of         tration as regards Class-
      the amount of the fine, in that it set the fine higher than        es 16 and the Board of
      the maximum permissible sum, selected the wrong                    Appeal:
      basic amount and failed to take account of mitigating
      circumstances.
                                                                         Grounds pleaded:              Infringement of Article 7(1)(b)
                                                                                                       and (3) of Regulation (EC) No 40/
                                                                                                       94.