Case C-134/02: Reference for a preliminary ruling by the Gerechtshof (Douanekamer) te Amsterdam by judgment of that Court of 2 April 2002 in the case of Hoogenboom Production Ltd. against head of the Roosendaal Customs district
Date: 2002-06-15
Institutions: Court of Justice
Subjects: common customs tariff, customs regulations, customs tariff, interpretation of the law, preliminary issue

C 144/22

EN

Official Journal of the European Communities

15.6.2002

Reference for a preliminary ruling by the Gerechtshof
(Douanekamer) te Amsterdam by judgment of that Court
of 2 April 2002 in the case of Hoogenboom Production
Ltd. against head of the Roosendaal Customs district

(Case C-134/02)

(2002/C 144/37)

No 000206698 and No 000206870 pursuant to Article 7
of the Community Trade Mark Regulation;

— annul the decision of the Second Board of Appeal of
14 February 2000 in Cases R 0237/1999-2, R 0238/
1999-2, R 0239/1999-2, R 0240/1999-2 and R 0241/
1999-2;

— order the respondent to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by judgment of
the Gerechtshof
(Douanekamer) te Amsterdam (Amsterdam Regional Court of
Appeal) Customs Chamber of 2 April 2002, received at the
Court Registry on 10 April 2002, for a preliminary ruling in
the case of Hoogenboom Production Ltd. against head of the
Roosendaal Customs district on the following question:

The question is identical to Case C-133/02.

(1) See p. 21 of the present Official Journal.

Appeal brought on 11 April 2002 by Mag Instrument, Inc.
against the judgment delivered on 7 February 2002 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-88/00 between Mag
Instrument, Inc. and the Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-136/02 P)

(2002/C 144/38)

An appeal against the judgment delivered on 7 February 2002
by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-88/00 between Mag
Instrument, Inc. and the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (1) was brought
before the Court of Justice of the European Communities on
Inc., represented by
11 April 2002 by Mag Instrument,
A. Nette, G. Rahn, W. von der Osten-Sacken and H. Stratmann
of the lawyers’ office Hoffmann Eitle in Munich.

The appellant claims that the Court should:

Pleas and main arguments

— Infringement of Article 7(1)(b) of Council Regulation (EC)
No 40/94 (2): the Court of First Instance does not deal in
its judgment with the overall signs in respect of which
registration is sought but rather, as a result of a divided
analysis, bases its examination on signs which are not
those in respect of which the applications were made.

— Incorrect evaluation of evidence running counter to the
principles of logic: the facts and evidence which the Court
of First Instance expressly did not consider and which
relate solely to distinctiveness of origin were wrongly not
taken into account by the Court on the ground that they
relate only to distinctiveness resulting from use and the
Court thereby acted illogically. However, even in the case
of facts and evidence with respect to which it cannot be
inter alia, to distinctiveness
excluded that they relate,
resulting from use, there is much to support the view that
the distinctiveness does not result only from use but,
rather, that it already existed originally. Obviously, only a
good design will be imitated.

— Infringement of the right to a hearing (Article 6(2) of the
EU Treaty in conjunction with Article 6 ECHR, first
indent of Article 41(2) of the EU Charter of Fundamental
Rights):
in
a concrete manner with the wide variety of shapes
demonstrated by the facts and evidence submitted by the
appellant and clearly failed to analyse sufficiently the
submitted material relating to original distinctiveness.

the Court of First Instance did not deal

— Infringement of Article 7(1)(b) of Regulation No 40/94:
the Court of First Instance erred in law in holding that
the accepted public view — that is, the actual perception
by consumers — cannot be considered in the context of
Article 7(1)(b) but, rather, exclusively in the context of
Article 7(3).

— set aside the judgment of the Court of First Instance of
the European Communities of 7 February 2002 in Case
T-88/00, holding that there are no absolute grounds for
refusal to register the Community trade mark applications
No 000139527, No 000119552, No 000206789,

— Infringement of Article 7(1)(b) of Regulation No 40/94:
the Court of First Instance failed to make any findings of
fact of its own with respect to the issues of whether, as it
simply presumed in a general manner, the shapes are in
fact common, the consumer is accustomed to the shapes