CELEX: C2002/144/113
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-115/02: Action brought on 12 April 2002 by Avex Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 144/58               EN                   Official Journal of the European Communities                                         15.6.2002
market and with the EEA Agreement, subject to compliance               was likely to strengthen even further SEB’s position on the
with the undertakings given. The applicant is challenging that         relevant markets.
decision.
                                                                       (1) Commission Notice on remedies acceptable under Council Regu-
                                                                           lation (EEC) No 4064/89 and under Commission Regulation (EC)
                                                                           No 447/98 (text with EEA relevance) (OJ 2001 C 68, p. 3).
In support of its application the applicant relies first of all
on an infringement of essential procedural requirements in
accepting the undertakings proposed by SEB late. Undertakings
must be submitted within three weeks from notification of a
transaction. The Commission allowed SEB to submit new
phase one undertakings five weeks after the transaction was            Action brought on 12 April 2002 by Avex Inc. against the
notified. The applicant claims that those undertakings could in        Office for Harmonisation in the Internal Market (Trade
no circumstances be regarded as enhancing the original                                         Marks and Designs)
undertakings but constituted new undertakings.
                                                                                                 (Case T-115/02)
                                                                                                (2002/C 144/113)
Secondly, the applicant claims that the Commission erred in                               (Language of the case: German)
law in deciding to authorise the operation without carrying
out an in-depth investigation. The applicant claims that the
conditions for authorisation in phase one were not met. The
undertakings proposed did not definitively resolve any serious         An action against the Office for Harmonisation in the Internal
doubts as to the compatibility of the transaction with the             Market (Trade Marks and Designs) was brought before the
common market, as required by the Commission Notice on                 Court of First Instance of the European Communities on
remedies (1).                                                          12 April 2002 by Avex Inc., Tokyo (Japan), represented by
                                                                       J. Hofmann, lawyer. Adolf Ahlers AG, Herford (Germany) was
                                                                       an additional party to the proceedings before the Board of
                                                                       Appeal.
                                                                       The applicant claims that the Court should:
Thirdly, the applicant considers that the Commission made a
manifest error of assessment in that the undertakings imposed          —      annul the decision of the First Board of Appeal of the
on SEB are insufficient to remove the competition concerns.                   Office for Harmonisation in the Internal Market of
The Commission therefore authorised the transaction without                   11 February 2002 (Case No R 634/2001-1) on the
any undertakings on certain markets where there were serious                  registration of the word/figurative sign ‘a’ as a Community
competition concerns. Moreover, an undertaking to grant a                     trade mark;
trade mark licence is not by its nature sufficient to resolve the
competition concerns that the transaction raises. The period           —      order the defendant to pay the costs.
for which the licence is granted is also insufficient for the
licensee to switch Moulinex’s products to its own brand in a
market characterised by strong brand loyalty. Furthermore, the
undertaking to supply the German market will have the effect           Pleas in law and main arguments
of strengthening SEB/Moulinex’s position on that market.
Finally, the fact that the Commission agreed to the same trade
mark being used by different companies within the European             Applicant seeking Com-         Avex Inc.
Union is liable to lead to coordinated behaviour by SEB/               munity trade mark:
Moulinex and the licensees.
                                                                       Community trade mark           The figurative mark ‘a’ for goods
                                                                       sought:                        in Classes 9, 16, 25, 35 and 41
                                                                                                      (inter alia, clothing, shoe-related
                                                                                                      items, shoes and boots) — appli-
                                                                                                      cation no 863142
Fourthly, the applicant considers that the Commission erred            Proprietor of mark or          Adolf Ahlers AG
in law by failing to examine the extent to which the derisory          sign right cited in the
sum paid and the financial aid provided by the French State            opposition proceedings:
 ---pagebreak--- 15.6.2002              EN                      Official Journal of the European Communities                                    C 144/59
Mark or sign right cited      The German national figurative              but was mislaid within the Commission’s services. The appli-
in opposition:                marks ‘a’ for goods in Class 25             cant was thus unable properly to discharge his financial
                              (inter alia, clothing)                      obligations and was required to pay a penalty. As the
                                                                          administrative fault on the Commission’s part is proved, the
Decision of Opposition        Refusal of application for regis-           applicant is entitled to compensation for the pecuniary and
Division:                     tration of mark                             non-pecuniary harm sustained.
Decision of Board of          Annulment of the decision of the
Appeal:                       Opposition Division with respect
                              to goods in Classes 9, 16, 35 and
                              41; affirmation of the decision
                              with respect to goods in Class 25
Pleas in law:                 —     No similarity with the rel-
                                    evant goods in Class 25
                                                                          Action brought on 11 April 2002 by San Paolo S.r.l.
                              —     Significant difference from             against the Commission of the European Communities
                                    the figurative marks
                                                                                                   (Case T-121/02)
                                                                                                  (2002/C 144/115)
Action brought on 16 April 2002 by Antonio Aresu                                             (Language of the case: Italian)
    against Commission of the European Communities
                         (Case T-116/02)
                                                                          An action against the Commission of the European Communi-
                        (2002/C 144/114)                                  ties was brought before the Court of First Instance of the
                                                                          European Communities on 11 April 2002 by San Paolo S.r.l.,
                                                                          represented by Professor Franco Gallo, Gabriele Escalar and
                  (Language of the case: French)
                                                                          Professor Adriano Rossi, Lawyers.
An action against the Commission of the European Communi-                 The applicant claims that the Court should:
ties was brought before the Court of First Instance of the
European Communities on 16 April 2002 by Antonio Aresu,                   —     annul the decision of the Commission of the European
residing in Brussels, represented by Sergio Diana, avocat.                      Communities of 11 December 2001 no C54/A/2000/EC,
                                                                                unpublished, declaring incompatible with the internal
The applicant claims that the Court should:                                     market the system of State aid laid down by Italian
                                                                                legislation in the form of tax advantages for banks and
                                                                                banking institutions;
—     order the Commission to make reparation for the pecuni-
      ary and non-pecuniary harm sustained by the applicant,
      amounting to EUR 353;                                               —     order the Commission to pay the costs of the proceedings
                                                                                and all consequential costs.
—     order the Commission to pay the costs.
Pleas in law and main arguments                                           Pleas in law and main arguments
The applicant is an official of the Commission and at the                 The main arguments are similar to those put forward in Case
material time was on temporary secondment to the Court of                 T-36/02 ABI v Commission (1).
Justice.
In support of his claim for damages, the applicant alleges that           (1) OJ C 97 of 20.4.2002, p. 14.
the Commission’s mail service received a letter from an Italian
professional body addressed to the applicant and containing a
demand for payment. The letter did not reach the applicant