Case C-55/01: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) — by order of that court of 23 November 2000 in the case of Rado Uhren AG
Date: 2001-05-19
Institutions: Court of Justice
Subjects: approximation of laws, brand name, interpretation of the law, patents licence, trade mark, trade-mark law

C 150/8

EN

Official Journal of the European Communities

19.5.2001

1. Declares

that, by refusing to refund to taxable persons
established in a Member State other than the French Republic,
who are holders of a main contract for a composite supply of
services relating to waste disposal, the value added tax which
they have been required to pay to the French State in cases
where they have subcontracted part of the work covered by such
a contract to a taxable person established in France, the French
Republic has failed to fulfil its obligations under the Eighth
Council Directive 79/1072/EEC of 6 December 1979 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Arrangements for the refund of value added
tax to taxable persons not established in the territory of the
country, in particular Article 2 thereof;

2. Dismisses the remainder of the application;

3. Orders the French Republic to pay the costs.

(1) OJ C 55 of 20.02.1998.

Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that
court of 23 November 2000 in the case of Winward
Industries Inc.

(Case C-54/01)

(2001/C 150/15)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in the
case of Winward Industries Inc. on the following questions on
the interpretation of Article 3(1)(b), (c) and (e) of the First
Council Directive 89/104/EEC of 21 December 1988 (1) to
approximate the laws of the Member States relating to trade
marks:

Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that
court of 23 November 2000 in the case of Linde AG

(Case C-53/01)

(2001/C 150/14)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in
the case of Linde AG on the following questions on the
interpretation of Article 3(1)(b), (c) and (e) of the First Council
Directive 89/104/EEC of 21 December 1988 (1) to approximate
the laws of the Member States relating to trade marks:

1.

2.

In determining whether a three-dimensional trade mark
which depicts the shape of a product has distinctive
character within the meaning of Article 3(1)(b) of the
above directive is there a stricter test for distinctive
character than in the case of other forms of trade marks?

any

significance

In the case of three-dimensional trade marks which depict
the shape of the product, does Article 3(1)(c) of the
Directive have
independently of
Article 3(1)(e)? If so, when considering Article 3(1)(c) —
or alternatively Article 3(1)(e) — must regard be had to
the interest of the trade in having the shape of the product
available for use, so that registration is, at
in
principle, ruled out and is possible as a rule only in the
case of trade marks which meet the requirements of
Article 3(3), first sentence, of the directive?

least

(1) OJ 1989 L 40, p. 1.

1.

2.

In determining whether a three-dimensional trade mark
which depicts the shape of a product has distinctive
character within the meaning of Article 3(1)(b) of the
above directive is there a stricter test for distinctive
character than in the case of other forms of trade marks?

any

significance

In the case of three-dimensional trade marks which depict
the shape of the product, does Article 3(1)(c) of the
Directive have
independently of
Article 3(1)(e)? If so, when considering Article 3(1)(c) —
or alternatively Article 3(1)(e) — must regard be had to
the interest of the trade in having the shape of the product
available for use, so that registration is, at
in
principle, ruled out and is possible as a rule only in the
case of trade marks which meet the requirements of
Article 3(3), first sentence, of the directive?

least

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling from the Bundesge-
richtshof (Federal Court of Justice) — by order of that
court of 23 November 2000 in the case of Rado Uhren
AG

(Case C-55/01)

(2001/C 150/16)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof
of 23 November 2000, which was received at the Court
Registry on 8 February 2001, for a preliminary ruling in the
case of Rado Uhren AG on the following questions on the
interpretation of Article 3(1)(b), (c) and (e) of the First Council
Directive 89/104/EEC of 21 December 1988 (1) to approximate
the laws of the Member States relating to trade marks:

19.5.2001

EN

Official Journal of the European Communities

C 150/9

1.

2.

In determining whether a three-dimensional trade mark
which depicts the shape of a product has distinctive
character within the meaning of Article 3(1)(b) of the
above directive is there a stricter test for distinctive
character than in the case of other forms of trade marks?

any

significance

In the case of three-dimensional trade marks which depict
the shape of the product, does Article 3(1)(c) of the
Directive have
independently of
Article 3(1)(e)? If so, when considering Article 3(1)(c) —
or alternatively Article 3(1)(e) — must regard be had to
the interest of the trade in having the shape of the product
available for use, so that registration is, at
in
principle, ruled out and is possible as a rule only in the
case of trade marks which meet the requirements of
Article 3(3), first sentence, of the directive?

least

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling by the Dioikitiko
Efeteio (Three-member Chamber C) Athens by order of
that court of 26 October 2000 in the case of Makedoniko
Metro v Greek State

(Case C-57/01)

(2001/C 150/17)

Reference has been made to the Court of Justice of the
European Communities by order of the Dioikitiko Efeteio
(Administrative Court of Appeal), Athens, of 26 October 2000
which was received at the Court Registry on 9 February 2001,
for a preliminary ruling in the case of Makedoniko Metro v
Greek State on the following questions:

‘Must a change in the composition of an association participat-
ing in procedures for the award of a public-works contract,
which occurs after submission of tenders and selection of the
association as the provisional contractor and is tacitly accepted
by the awarding authority, be interpreted in such a way as to
result in the loss of that association’s right to participate in the
procedure and, by extension, also of its right to, or interest in,
the award of the contract for execution of the works? Is such
an interpretation consistent with the provisions and spirit of
Directives 93/37/EEC and 89/665/EEC?’

Appeal brought on 19 February 2001 by Chronopost SA
against the judgment delivered on 14 December 2000 by
the Fourth Chamber (Extended Composition) of the Court
of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX),
DHL International, Federal Express International (France)
and CRIE and the Commission of the European Communi-
ties, supported by the French Republic, Chronopost SA
and La Poste

(Case C-83/01 P)

(2001/C 150/18)

An appeal against the judgment delivered on 14 December
2000 by the Fourth Chamber (Extended Composition) of the
Court of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX), DHL
International, Federal Express International (France) and CRIE
and the Commission of the European Communities, supported
by the French Republic, Chronopost SA and La Poste, was
brought before the Court of Justice of the European Communi-
ties on 19 February 2001 by Chronopost SA, represented by
V. Bouaziz Torron and D. Berlin, Avocats, with an address for
service in Luxembourg.

The appellant claims that the Court should:

— quash the decision of the Court of First Instance of
14 December 2000 in so far as it annuls Article 1 of
Decision 98/365/EC on the ground that the Commission
should have considered whether, on account of La Poste’s
reserved rights, the charges applied by that undertaking
for services to its subsidiary were based on costs lower
than those which a private operator with no reserved
rights would have had to bear;

— declare that there is no need to refer the case back to the
Court of First Instance; and give final judgment in the
matter,
in accordance with the first paragraph of
Article 54 of the Statute of the Court of Justice;

— in those circumstances, and in so far as the Court of First
Instance rejected all the other pleas in law raised by UFEX
in support of its action for annulment, declare that the
action brought by UFEX contesting Decision 98/365/EC
was unfounded;

— in so far as, under Article 69(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, and in so far as the pleadings submitted by
UFEX before the Court of First Instance in support of its
action for annulment must be rejected, UFEX and the
other applicants must be regarded as having been unsuc-
in their pleadings, order UFEX and the other
cessful
applicants to pay the costs;

— in the alternative, refer the case back to the Court of First
Instance for judgment and order UFEX and the other
applicants to bear the costs incurred by Chronopost in
the proceedings both before the Court of First Instance
and the Court of Justice.