Case C-498/01 P: Appeal brought on 24 December 2001 (fax: 20.12.2001) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 3 October 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-140/00 between Zapf Creation AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2002-03-02
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, appeal, infringement of EU law, toy industry, trade-mark law

C 56/8

EN

Official Journal of the European Communities

2.3.2002

f)

The Commission also considers that, by reason of its
failure to respect the requirements of Article 9 and 10 of
the Directive regarding permits, Ireland is not respecting
Article 13 of the Directive, which requires establishments
or undertakings carrying waste operations to be subject
to periodic inspection by the authorities, or Article 14 of
the Directive, which requires such establishments or
undertakings to keep records and to make this infor-
mation available on request by the competent authorities.

of the dried fodder. According to the Commission, it must also
be considered that there is a supply for consideration within
the meaning of the Sixth Directive, because the recipient of aid
is a fodder-processing undertaking which sells fodder to third
parties. In Finland, however, value added tax is not charged on
such aid.

(1) On the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax: uniform
basis of assessment, (OJ L 145 of 13.06.1977, p. 1).

(1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ

(2) (OJ L 63 of 21.03.1995, p. 1).

L 194, 25.07.1975, p. 39).
(2) OJ L 078, 26.03.1991, p. 32.

Action brought on 21 December 2001 by the Commission
of the European Communities against the Republic of
Finland

(Case C-495/01)

(2002/C 56/15)

An action against
the Republic of Finland was brought
before the Court of Justice of the European Communities on
21 December 2001 by the Commission of the European
Communities, represented by E. Traversa and I. Koskinen, with
an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that the Republic of Finland is in breach of
Article 11 of the Sixth Council Directive 77/388/EEC of
17 May 1977 on value added tax (1) by failing to charge
value added tax on aid paid under Council Regulation
(EC) No 603/95 of 21 February 1995 on the common
organisation of the market in dried fodder (2);

Appeal brought on 24 December 2001 (fax: 20.12.2001)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 3 October 2001 by the Fourth Chamber of the Court
of First Instance of the European Communities in Case
T-140/00 between Zapf Creation AG and the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-498/01 P)

(2002/C 56/16)

An appeal against the judgment delivered on 3 October 2001
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-140/00 between Zapf
Creation AG and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of Justice of the European Communities on 24 December
2001 (fax: 20.12.2001) by the Office for Harmonisation in
the Internal Market (Trade Marks and Designs), represented by
Detlev Schennen, Head of Unit in the Legal Department, and
Carina Røhl Søberg, administrator in the Legal Department of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs).

2. Order the Republic of Finland to pay the costs.

The appellant claims that the Court should:

Pleas in law and main arguments

According to Article 11A(1)(a) of the Sixth VAT Directive, the
taxable amount is the consideration payable for the supply,
which is to include ‘subsidies directly linked to the price’ of the
supply. Since the Community aid granted for the processing
and sale of dried fodder is paid on the basis of the amount of
dried fodder sold and treated, the aid must, in the Commission’s
opinion, be considered to have a direct influence on the price

(1) dismiss the application of Zapf Creation AG;

(2) order Zapf Creation AG (as applicant in the proceedings
before the Court of First Instance) to pay the costs of the
proceedings before the Court of First Instance;

(3)

set aside the judgment of the Court of First Instance of
3 October 2001 in Case T-140/00 ‘New Born Baby’ (1);

(4) order Zapf Creation AG to pay the costs of the proceed-

ings before the Court of Justice.

2.3.2002

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Official Journal of the European Communities

C 56/9

Pleas in law and main arguments

— Infringement of Article 7(1)(c) of Council Regulation No
40/94 in respect of goods classed as ‘dolls to play with’:
the contested judgment does not take sufficient account
of the difference between indications of origin (valid
marks) and those of a purely informative nature (indi-
cations falling within Article 7(1)(c)). The Court of
First Instance erred in law by reducing the scope of
Article 7(1)(c) to the descriptive indication of the product
itself (‘that the sign in question is descriptive of the dolls
themselves’) and by excluding from the scope of that
provision the description of the dolls’ characteristics
(‘descriptive of
In
addition, the Court of First Instance erred in law in
finding that ‘the persons targeted, when making their
purchasing decision, [must] conflate the toy and what it
represents’; this requires a certain causality between the
descriptive indication and the purchasing decision which
has nothing to do with Article 7(1)(c). The Court of First
Instance disregarded the fact that numerous descriptive
indications describe not the kind of product but what it
represents or its content; that is the general position as
regards toys, but it also applies in respect of books and
magazines, video games, etc.

that which the dolls represent’).

— Infringement of Article 7(1)(c) of Council Regulation No
40/94, in so far as concerns ‘accessories for dolls in the
form of playthings’: the Court of First Instance misapplied
the principle of trade-mark law — in itself correct — that
the protectability of a mark is to be considered by
reference to the goods in respect of which the application
is made,
inasmuch as it wrongly analysed the goods
‘accessories for dolls in the form of playthings’ separately
from the rest of the classification. The indication ‘access-
ories for dolls in the form of playthings’ is so manifestly
related to the principal goods — ‘dolls to play with’ —
that it must inevitably share the same fate, in terms of
trade-mark law, as that meted out to those principal
goods.

— Infringement of Article 12 of Council Regulation No
40/94 and of the judgment in BMW v Deenik (2), in so
far as concerns ‘accessories for dolls in the form of
playthings’.

— Infringement of Article 7(1)(b) of Council Regulation No
40/94: since, in the present case, the refusal pursuant to
Article 7(1)(b) on the ground of insufficient distinctive
character was based on the same arguments as those
applying in respect of Article 7(1)(c), it is logical that the
outcome of the present case can only be uniform, i.e. the
opposite of that contained in the contested judgment.

(1) Not yet published in the European Court Reports.
(2) Judgment of the Court of Justice of 23 February 1999 in Case

C-63/1997, [1999] ECR I-925.

Action brought on 21 December 2001 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-500/01)

(2002/C 56/17)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 21 December
2001 by the Commission of the European Communities,
represented by Stefan Rating, of its Legal Service, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre, Kirchberg.

The applicant claims that the Court should:

(1) declare that, by failing to comply with the provisions of
Article 4c of Directive 90/388/EEC (1), as amended by
Directive 96/19/EC (2), the Kingdom of Spain has failed
to fulfil its obligations under Article 249 EC;

(2) order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that it will not be possible, at least
as regards Telefo´ nica, for subscription charges to be aligned
with costs prior to the beginning of 2003. This results from
the practical limitations imposed by the Spanish system of
maximum price limits, which prevent Telefo´ nica from making
more rapid changes to the amount of the subscription charge.
The Commission further maintains that it can hardly be argued
that a re-balancing spread over a period of some seven years
meets the criterion of maximum possible rapidity laid down
by the directive, and that the re-balancing has proceeded in
parallel with the opening-up to competition of the Spanish
telecommunications market.

(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
tition in the markets for telecommunications services (OJ L 192
of 24.7.1990, p. 10).

(2) Commission Directive 96/19/EC of 13 March 1996 amending
Directive 90/388/EEC with regard to the implementation of
full competition in telecommunications markets (OJ L 74 of
13.3.1996, p. 13).