JUDGMENT OF THE COURT OF FIRST INSTANCE (Eighth Chamber)
19 November 2008 (*)
(Community trade mark – Application for the Community word mark RAUTARUUKKI – Absolute grounds for refusal of registration – Descriptive character – Absence of distinctive character – Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 40/94 – Evidence offered in support)
In Case T‑269/06,
Rautaruukki Oyj, established in Helsinki (Finland), represented by P. Hagman, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by S. Laitinen, acting as Agent,
defendant,
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 July 2006 (Case R 48/2006-4) concerning the registration of the word mark RAUTARUUKKI as a Community trade mark,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Eighth Chamber),
composed of M.E. Martins Ribeiro (Rapporteur), President of the Chamber, S. Papasavvas and A. Dittrich, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the Court of First Instance on 21 September 2006,
having regard to OHIM’s response lodged at the Registry on 17 January 2007,
having regard to the parties’ letters of 22 May 2008 stating that they would not take part in the hearing,
having regard to the decision by the President of the Court to reallocate the case to the Eighth Chamber after the Judge-Rapporteur initially appointed was prevented from attending,
gives the following
Judgment
Background to the dispute
1 On 13 January 2004 the applicant, Rautaruukki Oyj, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended.
2 The trade mark in respect of which registration was sought is the word sign RAUTARUUKKI.
3 The goods in respect of which registration was sought fall, in particular, within Class 6 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Common metals and their alloys; metal building materials; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores; metal plates, sheets and coils; metal tubes and profiles; non-coated or coated’.
4 By notice of 30 September 2004, the examiner informed the applicant that the trade mark applied for did not appear to him to be eligible for registration, under Article 7(1)(b) and (c) of Regulation No 40/94, in relation to the goods in Class 6. He stated, in particular, that the mark applied for consisted exclusively of the Finnish word ‘rautaruukki’, which means iron works, and that, taken as a whole, without any additional element which could be seen as fanciful or imaginative, that word consisted exclusively of a sign which may serve, in trade, to designate the kind or quality of the goods in question. Furthermore, the mark applied for was also considered to be devoid of any distinctive character since it would not be capable of distinguishing the applicant’s goods from those of other companies. The examiner therefore invited the applicant to submit its observations to him within a time-limit of two months.
5 By letter of 30 November 2004, the applicant conceded the descriptive nature of the word ‘rautaruukki’, but challenged the objections based on the application of Article 7(1)(b) and (c) of Regulation No 40/94 to the sign in question by relying on the long-term, extensive and established use of the sign in Finland in relation to the goods in Class 6 for the purposes of Article 7(3) of the regulation.
6 By decision of 28 October 2005, the examiner dismissed the application for registration in respect of the Class 6 goods because the Community trade mark applied for was ineligible for registration on the grounds for refusal contained in Article 7(1)(b) and (c) of Regulation No 40/94, since, considered as a whole, it was descriptive and devoid of any distinctive character and the applicant had failed to establish that the sign had become distinctive in consequence of use within the meaning of Article 7(3) of the regulation.
7 On 28 December 2005 the applicant filed an appeal with OHIM, under Articles 57 to 62 of Regulation No 40/94, against the examiner’s decision.
8 By decision of 20 July 2006 (‘the contested decision’), the Fourth Board of Appeal considered, essentially, first, that the sign RAUTARUUKKI, which means iron works in Finnish, refers directly to the nature and characteristics of the goods in question, with the consequence that it will be immediately and unequivocally understood by the relevant public, without any effort or analysis, as a clear statement concerning the key feature of the goods covered by the Community trade mark application, namely that they are metal products or were manufactured in an iron works. As a result of that descriptive character, the sign concerned is devoid of any distinctive character. With regard to the distinctive character of the sign said to have been acquired through use, the Board of Appeal considered that the evidence submitted by the applicant was insufficient to establish such use. The contested decision indicates that the applicant had lodged documents recounting the history of Rautaruukki in Finland, an extract from the Register of Companies showing the registration of Rautaruukki in 1960 and the results of a search in and the extract from the Trade Register which refers to Rautaruukki International Oy.
Procedure and forms of order sought by the parties
9 The applicant claims that the Court should:
– annul the contested decision;
– remit the case to OHIM for the purpose of registration of the mark;
– order OHIM to pay the costs.
10 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
11 After the application and response had been lodged, the applicant informed the Court on 17 January 2007 that OHIM had accepted the registration of the sign in a decision of the Second Board of Appeal of 21 November 2006 relating to a similar case decided after the contested decision. The applicant annexed to its letter the abovementioned decision in Finnish, accompanied by an English translation, which was placed on the case file. By letter of 21 February 2007, also placed on the case file, OHIM replied to that letter.
Admissibility of the second head of claim
12 By its second head of claim, the applicant requests the Court to remit the case to OHIM for the purposes of registration of the mark.
13 In that regard, it should be recalled that, under Article 63(6) of Regulation No 40/94, OHIM is required to take the necessary measures to comply with the judgment of the Community judicature. Therefore, the Court of First Instance is not entitled to issue directions to OHIM. It is for OHIM to draw the consequences of the operative part and of the grounds of the judgment which the Court of First Instance will give. According to the case-law, that principle applies, inter alia, where the head of claim concerns a request to remit the case to OHIM in order for it to rule on the application for registration (Case T-331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [2001] ECR II-433, paragraph 33, and Case T-216/02 Fieldturf v OHIM (LOOKS LIKE GRASS… FEELS LIKE GRASS… PLAYS LIKE GRASS) [2004] ECR II‑1023, paragraph 15).
14 The applicant’s second head of claim, which seeks from the Court a direction to OHIM to register the Community trade mark applied for, must therefore be dismissed as inadmissible.
Admissibility of the new evidence annexed to the application
Arguments of the parties
15 First, the applicant states that, in its appeal against the examiner’s decision, it had filed certain documents concerning the history of Rautaruukki, the registration of its company name, the page in the telephone directory which refers to ‘Rautaruukki Oyj’, a page concerning a trade mark called Rautaruukki Fastjoint, and several articles on registration of trade marks and company names in Finland. Second, it contends that it had filed other evidence of use with the Finnish Patents Office following the objections made by that office to registration of that mark. At the stage of the present action, the applicant appends to its application all the documents showing that the sign RAUTARUUKKI is highly distinctive and eligible for registration in Finland for goods in Class 6, including those which had been filed at the Finnish Patents Office and not at the Board of Appeal. The applicant also appends the decision of the Finnish Patents Office of 15 August 2006, which found definitively that the applicant had established that the mark in question had become distinctive through use. The applicant points out that, on 15 March 2006, the Finnish Patents Office had adopted a formal decision according to which the sign in question was descriptive and devoid of distinctive character. The applicant had thereupon produced affidavits from the Finnish Central Chamber of Commerce and from all local chambers of commerce (except one) and from 92 companies showing that the trade mark had become distinctive as a result of the use made of it.
16 The applicant points out that the Finnish registration did not take place until 15 August 2006, meaning that it was unable to provide that evidence during the earlier proceedings before the examiner or the Board of Appeal. It explains that it had hoped to submit the evidence to the Board of Appeal and had reserved the right to do so, but it had not had time to adduce such evidence, the Board of Appeal having taken its decision within an unusually short period of time, namely less than five months. The applicant points out that Article 74(2) of Regulation No 40/94 provides that, in proceedings involving a number of parties, OHIM may disregard facts or evidence which are not submitted in due time. Nevertheless, OHIM enjoys discretion as to whether or not to take account of evidence produced after the expiry of a time-limit.
17 In addition, Rule 22(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1), which provides that proof of use of the earlier mark must be provided within such period as OHIM shall specify, cannot preclude taking into account additional evidence if new factors emerge, even if submitted after expiry of that period. In the present case, proof that the mark had become distinctive through use was not available before 15 August 2006. Finally, the applicant requests permission, should the Court decide not to take the new evidence into consideration, to submit other evidence in order to prove that the mark RAUTARUUKKI was clearly established at the date of the application for registration.
18 OHIM enquires why the evidence in question, which was initially presented to the Finnish Patents Office in order to contest the objection of that Office regarding the descriptive character and the lack of distinctiveness of the sign concerned and which had enabled the mark RAUTARUUKKI to be registered in consequence of use, was not presented to it. It points out that, in principle, this additional evidence must be declared inadmissible, but leaves it to the Court to resolve the matter, even if by taking it into account the subject-matter might be altered, since, had the new facts been known at the time of the proceedings, they would probably have led to a revision of the original decision.
Findings of the Court
19 As a preliminary point, it should be pointed out that the applicant annexed to its application a number of documents intended to prove that the sign RAUTARUUKKI has become distinctive through use. It is common ground that some of those documents, that is the affidavits from the Finnish Central Chamber of Commerce and from all local chambers of commerce (except one) and from 92 companies and the decision of the Finnish Patents Office of 15 August 2006, approving registration of the word mark RAUTARUUKKI for the goods in question, were not submitted in the proceedings before OHIM.
20 In that regard, it should be recalled that the purpose of the action brought before the Court is to review the legality of the decisions of the Boards of Appeal of OHIM in accordance with Article 63 of Regulation No 40/94. It is therefore not the Court’s function to re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. To admit such evidence is contrary to Article 135(4) of the Rules of Procedure of the Court of First Instance, which prohibits the parties from changing the subject-matter of the proceedings before the Board of Appeal (Case T-128/01 DaimlerChrysler v OHIM (Grille) [2003] ECR II-701, paragraph 18).
21 It must therefore be held that the applicant cannot, in order to establish that the mark has become distinctive through use, rely on evidence which it has adduced, for the first time, as an annex to its application. The Board of Appeal is required to take account of evidence which may be relevant to the assessment whether distinctiveness has been obtained through use only if the applicant for the mark produced that evidence during the administrative procedure before OHIM (see Case T‑247/01 eCopy v OHIM (ECOPY) [2002] ECR II‑5301, paragraph 48; Case T-16/02 Audi v OHIM (TDI) [2003] ECR II‑5167, paragraphs 63 to 65; Case T-399/02 Eurocermex v OHIM (Shape of a bottle of beer) [2004] ECR II‑1391, paragraph 52, upheld on appeal in Case C-286/04 P Eurocermex v OHIM [2005] ECR I‑5797; and Case T-396/02 Storck v OHIM (Shape of a sweet) [2004] ECR II‑3821, paragraph 24).
22 With regard, in particular, to the decision of the Finnish Patents Office of 15 August 2006, appended by the applicant to its application, it should be pointed out that, in a very similar case on that point in which the applicant intended to rely on the decision of the United Kingdom’s Patent Office which approved the registration of the word mark ROBOTUNITS, which was requested before OHIM, the Court held that that registration could not be taken into consideration since only factors of which OHIM could have been aware during the administrative procedure are to be taken into consideration (Case T-222/02 HERON Robotunits v OHIM (ROBOTUNITS) [2003] ECR II-4995, paragraph 51).
23 It follows from the foregoing that all the evidence, both the affidavits and the decision of the Finnish Patents Office, relied on for the first time before the Court and annexed to the application, must be declared inadmissible.
24 The applicant nevertheless maintains that the decision of the Finnish Patents Office of 15 August 2006 should be taken into consideration on the ground that the Board of Appeal gave its decision within a very brief period of time, namely around five months from the date of its reply explaining the grounds of its action brought against the decision of the examiner of 28 December 2005.
25 Even supposing that a decision of a national trade mark office can be taken into consideration where the decision was not submitted as evidence in proceedings before OHIM, and moreover without prejudice to the fact that such a decision has no influence on the substantive assessment of the contested decision on account of the autonomous character of the Community trade mark regime (see, in particular Case T-346/04 Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II‑4891, paragraph 70, and Case T-29/04 Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH) [2005] ECR II‑5309, paragraph 75), the argument expounded by the applicant in the present case cannot be accepted.
26 It must be held that the applicant did not, as pointed out by OHIM, take any steps in order to obtain, if necessary, the staying of the proceedings before OHIM by extension of the time-limit pending the outcome of the parallel action brought before the Finnish Patents Office.
27 The same applies to the affidavits from the Finnish Central Chamber of Commerce, from all local chambers of commerce (except one) and from 92 companies showing that the trade mark had become distinctive as a result of the use made of it. It must be concluded that there is no evidence in the case file to show that the applicant could not have requested the drawing up of such documents in good time in the OHIM proceedings, because, even if those affidavits were drawn up between the months of April and May 2006, they could have been drawn up earlier, since they indicate an awareness of the sign in question ranging from 1960, for the oldest, to 2003, for the most recent. Furthermore, such declarations could even have been sent to OHIM on the date they were drawn up, which was before the contested decision was adopted.
28 It follows from all of the foregoing that the evidence adduced for the first time before the Court is inadmissible and that the applicant’s offer to prove must be rejected.
Substance
29 In support of its request for annulment of the contested decision, the applicant raises three pleas in law alleging, first, infringement of Article 7(1)(b) of Regulation No 40/94, second, infringement of Article 7(1)(c) of that regulation and third, infringement of Article 7(3) of that regulation.
30 In the circumstances, the pleas in law relating to the infringement of Article 7(1)(b) and (c) of Regulation No 40/94 should be considered together.
First and second pleas in law alleging infringement of Article 7(1)(b) and (c) of Regulation No 40/94
Arguments of the parties
31 The applicant refers to the provisions of Article 7(1)(b) and (c) of Regulation No 40/94 and claims that the objections relating to the lack of distinctiveness and the distinctive character of the sign in question concern Finland and the goods referred to in Class 6 alone.
32 OHIM contends that that plea in law should be dismissed.
Findings of the Court
33 Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, every application must contain a brief statement of the pleas in law on which it is based and that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court of First Instance to rule on the action. The same considerations must apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity (Case T-123/04 Cargo Partner v OHIM (CARGO PARTNER) [2005] ECR II‑3979, paragraph 26).
34 In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least in summary form, provided that the statement is coherent and comprehensible (see CARGO PARTNER, paragraph 33 above, at paragraph 27, and case-law cited).
35 In the present case, the application does not fulfil the conditions laid down in Article 21 of the Statute of the Court, applicable to proceedings before the Court of First Instance pursuant to the first paragraph of Article 53 of the Statute, and in Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. The applicant does not in fact deny that the sign for which registration is sought is descriptive of the goods in question, but argues only, in reliance on the evidence which it submitted to the Finnish Patents Office and on the decision of that office to register the sign RAUTARUUKKI in Finland, that the grounds for refusal contained in Article 7(1)(b) and (c) of Regulation No 40/94 cannot be used against it on account of Article 7(3) of Regulation No 40/94, which provides that those provisions, inter alia, are not to apply if the trade mark has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it.
36 Nor, it is to be noted, did the applicant in the proceedings before OHIM deny the descriptive character of the sign in question and the fact that it was devoid of any distinctive character as such, since it stated that the distinctive character of the sign in question derived from its use. In its letter of 30 November 2004, in response to the examiner’s communication of 30 September 2004, the applicant wrote:
‘The descriptive meaning of the Finnish word “rautaruukki” is basically not denied. It is denied, however, that the applied mark would not comply with Article 7(1)(b) and (c), because the Applicant has obtained a sole right to the trademark and the trade name RAUTARUUKKI based on a very long-time and extensive use and establishment of RAUTARUUKKI in respect of the goods in class 6 covered by the present application.’
37 It follows from the foregoing that the application does not contain a brief statement of the applicant’s objections to the contested decision based on the possible infringement by the Board of Appeal of Article 7(1)(b) and (c) of Regulation No 40/94, with the result that the first and second pleas in law must be declared inadmissible.
Third plea in law alleging infringement of Article 7(3) of Regulation No 40/94
Arguments of the parties
38 The applicant points out that the provisions of Article 7(1)(b) and (c) of Regulation No 40/94 are not to apply if the trade mark has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it. According to the applicant, the Finnish registration of the mark RAUTARUUKKI, as a result of its distinctive character acquired by use, precludes any third party from using it, with the consequence that there is no reason to retain this term for use by third parties. Accordingly, to dismiss the request for registration of the mark would not only be a legal absurdity but would also contravene every principle of procedural economy, since the applicant would be obliged to undertake an irrational conversion of its application for registration or to file another application.
39 The applicant points out that, after the Second World War, the Republic of Finland was ordered to pay heavy war indemnities to the former Soviet Union, consisting mainly of vehicles and metal construction goods. Since that had the effect of limiting resources of steel and metal raw materials, the Finnish State decided, at the end of the 1950s, to set up a State-owned company with the task of producing the steel required by the metal industry. The applicant was accordingly established in 1960 and is generally known to Finnish consumers and traders.
40 Having regard to all the items of evidence provided to the Court and referred to in paragraph 15 above, the applicant claims to have established beyond any possible doubt that the sign RAUTARUUKKI had become distinctive and that it was therefore eligible for registration in respect of goods in Class 6 in Finland, under Article 7(3) of Regulation No 40/94, on account of the very extensive and long-term use of that sign and the history of the applicant as the main engine of Finnish industry.
41 The applicant claims finally, in its letter of 17 January 2007, which has been placed on the case file, that, in a decision concerning the sign JALLU, OHIM stated that the registration of that sign in Finland had to be given great weight even though that registration took place on the basis of the use of the mark, and even though the decisions of national authorities are not binding on OHIM.
42 OHIM states that it stands by its position that the contested decision was correct at the time of its adoption and calls upon the wisdom of the Court to provide guidance, first, as to whether or not the decision of the Finnish Patents Office should be treated as admissible new evidence and, second, as to whether it would be appropriate, for reasons of procedural economy, for the new facts which are referred to therein to be remitted to the Board of Appeal for assessment.
Findings of the Court
43 Article 7(3) of Regulation No 40/94 provides that the absolute grounds for refusal do not preclude the registration of a trade mark if it has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it. In the circumstances referred to in Article 7(3) of Regulation No 40/94, the fact that the sign which constitutes the mark in question is actually perceived by the relevant section of the public as an indication of the commercial origin of a product or service is the result of the economic effort made by the trade mark applicant. That fact justifies putting aside the public-interest considerations underlying Article 7(1)(b) to (d), which require that the marks referred to in those provisions may be freely used by all in order to avoid conceding an unjustified competitive advantage to a single trader (Shape of a bottle of beer, paragraph 21 above, at paragraph 41, and Shape of a sweet, paragraph 21 above, at paragraph 55).
44 First, it is clear from the case-law that the acquisition of distinctiveness through use of a mark requires that at least a significant proportion of the relevant section of the public identifies the products or services as originating from a particular undertaking because of the mark. However, the circumstances in which the condition as to the acquisition of distinctiveness through use may be regarded as satisfied cannot be shown to exist solely by reference to general, abstract data, such as specific percentages (see Shape of a sweet, paragraph 21 above, paragraph 56, and case-law cited).
45 Second, in order to have the registration of a trade mark accepted under Article 7(3) of Regulation No 40/94, the distinctive character acquired through the use of that trade mark must be demonstrated in the part of the European Union where it was devoid of any such character under Article 7(1)(b) to (d) of that regulation (see Shape of a sweet, paragraph 21 above, at paragraph 57, and case-law cited).
46 Third, in assessing, in a particular case, whether a mark has become distinctive through use, account must be taken of factors such as, inter alia: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the significance of the investments by the undertaking to promote it; the proportion of the relevant class of persons who, because of the mark, identify the goods as originating from a particular undertaking and statements from chambers of commerce and industry or other trade and professional associations. If, on the basis of those factors, the relevant class of persons, or at least a significant proportion thereof, identifies the goods as originating from a particular undertaking because of the trade mark, it must be concluded that the requirement for registering the mark laid down in Article 7(3) of Regulation No 40/94 is satisfied (see Shape of a sweet, paragraph 21 above, at paragraph 58, and case-law cited).
47 Fourth, according to the case-law, the distinctiveness of a mark, including that acquired through use, must also be assessed in relation to the goods or services in respect of which registration is sought and in the light of the presumed perception of an average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect (see Shape of a sweet, paragraph 21 above, paragraph 59, and case-law cited).
48 It is in the light of the foregoing that it must be considered whether, in the present case, the Board of Appeal erred in law in ruling out the applicant’s argument alleging that the mark applied for should have been accepted for registration under Article 7(3) of Regulation No 40/94.
49 First, it must be pointed out that, for the reasons given in paragraphs 19 to 22 above, the affidavits from the Finnish Central Chamber of Commerce and from all local chambers of commerce (except one) and from 92 companies, and the Finnish registration of the word mark RAUTARUUKKI for the goods in question in the present case, cannot be regarded as admissible.
50 The applicant cannot claim that, by taking into consideration only the evidence submitted to OHIM, it has proved that distinctiveness has been acquired through use. It must be held that, as pointed out by the Board of Appeal in paragraph 20 of the contested decision, that evidence is clearly insufficient to establish distinctiveness through use.
51 That evidence thus consists of nothing more than the documents recounting the history of the company in Finland, an extract from the Companies Register showing the registration of Rautaruukki in 1960, the results of a search in and an extract from the Trade Register which refers to Rautaruukki International Oyj, a copy of the page in the telephone directory which contains the contact details of Rautaruukki, and a page concerning a trade mark called Rautaruukki Fastjoint on unheaded paper, without any further details or information, and several articles on registration of trade marks and company names in Finland. The Board of Appeal’s inference, at paragraph 20 of the contested decision, was therefore correct, namely that while that evidence was appropriate to establish the use of the mark applied for in Finland and its registration in the Trade and Companies Registers, it did not, on the other hand, establish distinctiveness in consequence of use within the meaning of Article 7(3) of Regulation No 40/94 and did not permit the inference that the relevant public in Finland associates the sign RAUTARUUKKI uniquely with the applicant’s goods falling within Class 6.
52 With regard, finally, to the applicant’s arguments regarding the decision of the Second Board of Appeal of OHIM of 21 November 2006 concerning the sign JALLU, it need only be pointed out that the lawfulness of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation No 40/94, as interpreted by the Community judicature, and not on the basis of a previous practice of theirs (ARTHUR ET FELICIE, paragraph 25 above, at paragraph 71, and case-law cited).
53 The third plea in law cannot therefore be accepted.
54 It follows from all of the foregoing that the action must be dismissed.
Costs
55 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it should be ordered to pay the costs, as applied for by OHIM.
On those grounds,
THE COURT OF FIRST INSTANCE (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Rautaruukki Oyj to pay the costs.
Martins Ribeiro | Papasavvas | Dittrich |
Delivered in open court in Luxembourg on 19 November 2008.
[Signatures]