CELEX: C2002/305/57
Language: en
Date: 2002-12-07 00:00:00
Title: Case T-307/02: Action brought on 7 October 2002 by Altana Pharma AG against the Office for Harmonisation in the Internal Market (Trade, Marks and Designs)

C 305/26                EN                      Official Journal of the European Communities                                       7.12.2002
Pleas in law and main arguments                                            The applicant claims that the Court should:
                                                                           —     annul Decision R 719/2000-4 of the Fourth Board of
The applicant is contesting Article 3 of the Commission’s                        Appeal of the OHIM of 12 July 2002;
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, in so far as it imposes a fine on            —     order OHIM to pay the costs.
the applicant for infringement of Article 81 EC. The applicant
is contesting only the fine imposed on it, and is not challenging
the facts established or the legal assessment thereof.
                                                                           Pleas in law and main arguments
The applicant claims that the contested decision is contrary to            The Community trade           The bottle comprises a main sec-
Article 15(2) of Regulation No 17 ( 1) and Article 253 EC. Fines           mark concerned:               tion with, at its base, a recess, in
to be imposed are to be determined by reference to the                                                   the shape of a slightly truncated
seriousness of the infringement and the duration thereof.                                                cone with, in its flat section, a
According to the applicant, that rule has been applied by the                                            stylised star in relief In the lower
Commission in an inequitable and unreasonable manner. The                                                part of the main section, which is
applicant maintains that undertakings which committed the                                                nearly cylindrical from bottom to
same infringement over the same period should be required,                                               top, there is an initial series of
under the terms of the decision, to pay a much smaller fine.                                             wavy grooves and, in the top
                                                                                                         part, which is of slightly smaller
                                                                                                         diameter and bobbin-shaped,
Furthermore, according to the applicant, the Commission, in                                              there are spiralling grooves which
choosing the addressees of the decision, the turnover attribu-                                           form lozenges when seen through
table to each of those addressees and the order to be applied                                            the bottle The upper section,
to the restriction of the fine to 10 % of turnover and the                                               which is the shape of a slightly
leniency rule, adopted a decision which cannot be objectively                                            truncated cone, ends in a cylindri-
justified and which does not justify the considerable differences                                        cal neck with a blue cap — Regis-
in the amounts of the fines imposed.                                                                     tration No 922179
                                                                           Goods or service:             Water (Class 32 of the inter-
The applicant also pleads infringement of the Community                                                  national classification).
principles of equality and proportionality and of the prohib-
ition precluding arbitrariness. According to the applicant,                Decision of the Board of      Refusal of examiner to register the
undertakings involved in a similar measure have been treated               Appeal:                       mark.
in an unequal way.
                                                                           Grounds of claim:             Infringement of Article 7(1)(b)
                                                                                                         and (e) of Regulation EEC No 40/
( 1) EEC Council: Regulation No 17: First Regulation implementing                                        94.
     Articles 85 and 86 of the Treaty (OJ, English Special Edition
     1959-1962, p. 87).
                                                                           Action brought on 7 October 2002 by Altana Pharma AG
                                                                           against the Office for Harmonisation in the Internal
Action brought on 3 October 2002 by Nestlé Waters                                        Market (Trade, Marks and Designs)
France against Office for Harmonization in the Internal
          Market (Trade, Marks and Designs) (OHIM)                                                  (Case T-307/02)
                         (Case T-305/02)                                                            (2002/C 305/57)
                         (2002/C 305/56)                                   (Language of the case to be determined pursuant to Article 131(2)
                                                                           of the Rules of Procedure — language in which the application was
                                                                                                   submitted: German)
                    (Language of the case: French)
                                                                           An action against the Office for Harmonisation in the Internal
An action against Office for Harmonization in the Internal                 Market (Trade, Marks and Designs) was brought before the
Market (Trade, Marks and Designs) (OHIM) was brought before                Court of First Instance of the European Communities on
the Court of First Instance of the European Communities on                 7 October 2002 by Altana Pharma AG, Konstanz (Germany),
3 October 2002 by Nestlé Waters France, whose registered                   represented by H. Becker, lawyer. N.V. Organon, Oss (Nether-
office is in Issy-les-Moulineaux (France), represented by Alain            lands), was an additional party to the proceedings before the
Cléry.                                                                     Board of Appeal.
 ---pagebreak--- 7.12.2002              EN                     Official Journal of the European Communities                                       C 305/27
The applicant claims that the Court should:                              Action brought on 7 October 2002 by SGL Carbon AG
                                                                           against the Commission of the European Communities
—     annul the decision of the First Board of Appeal of the
      Office for Harmonisation in the Internal Market (Trade,                                      (Case T-308/02)
      Marks and Designs) of 23 July 2002 (appeal No R 526/
      2001-1);
                                                                                                   (2002/C 305/58)
—     order the Office for Harmonisation in the Internal Market
      (Trade, Marks and Designs) to reject opposition                                        (Language of the case: German)
      No B 262651 filed by the opponent.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 7 October 2002 by SGL Carbon
                                                                         AG, Wiesbaden (Germany), represented by M. Klusmann and
                                                                         F. Wiemer, Rechtsanwälte.
Party applying for regis-      The applicant (formerly Byk Guld-
tration of the Com-            en Lomberg Chemische Fabrik
munity trade mark:             GmbH)                                     The applicant claims that the Court should:
Trade mark in respect          Word mark ‘XION’ for goods in             —     Annul the decision of 24 July 2002 in so far as it refuses
of which registration is       Class 5 (Medicines) — Application               to facilitate the making of payments;
sought:                        No 1207976
                                                                         —     Annul the decision of 24 July 2002 in so far as it
Proprietor of the trade        N.V. Organon                                    seeks payment of default interest for the period from
mark or sign right relied                                                      24 October 2001 to the date of receipt of the declaration
on in the opposition                                                           of securities at a rate in excess of 6,04 %;
proceedings:
                                                                         —     In the alternative, reduce as appropriate the default
Trade mark or sign right       The national and international                  interest laid down in the decision;
relied on in the oppo-         word mark ‘XYVION’ for goods in
sition proceedings:            Class 5 (inter alia, medicines and        —     Order the defendant to pay the costs of the proceedings.
                               pharmaceutical preparations for
                               human use)
Decision of Opposition         Rejection of opposition
                                                                         Pleas in law and main arguments
Division:
Decision of Board of           The decision of the Opposition            By a decision of 18 July 2001 the Commission imposed a fine
Appeal:                        Division was annulled and the             on the applicant (1). The applicant requested the Commission
                               opposition allowed.                       in October 2001 to set aside the requirement that securities be
                                                                         lodged in respect of the fine claim and ancillary demands, and
Pleas in law:                  —    Infringement                 of      to facilitate the undertaking in making payments in view of
                                    Article 8(1)(b) of Regulation        the difficult economic situation. The Commission turned down
                                    No 40/94 ( 1);                       this request in the decision under challenge, whereupon the
                                                                         applicant lodged the required securities. The Commission is
                               —    The marks are not so similar         seeking increased interest of 8,04 % for the period up to the
                                    as to create a likelihood of         lodgment of the securities.
                                    confusion.
                                                                         The applicant challenges that decision and argues that the
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         Commission committed errors of form and judgment in
     Community trade mark (OJ 1994 L 11, p. 1).                          turning down its request. On formal grounds alone, the
                                                                         Commission, it claims, failed to provide adequate grounds for
                                                                         its negative decision. That decision is also substantively
                                                                         defective in regard to the exercise of judgment as it is not clear
                                                                         that the Commission properly exercised its discretion.