CELEX: C2000/316/57
Language: en
Date: 2000-11-04 00:00:00
Title: Case T-219/00: Action brought on 18 August 2000 by Ellos AB, a company incorporated under Swedish law, against the Office for Harmonisation in the Internal Market

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.