Case C-136/02 P: 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)
Date: 2002-06-15
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, General Court (EU), action for annulment (EU), designs and models, trade mark

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

15.6.2002

EN

Official Journal of the European Communities

C 144/23

income-based jobseeker’s allowance to a person in the
circumstances of the claimant in the present case?

(1) on freedom of movement for workers within the Community (OJ

L 257, 19.10.1968, p. 2) (SE SER 1 68(II), p. 475).

(2) on the abolition of restrictions on movement and residence within
the Community for workers of Member States and their families
(OJ L 257, 19.10.1968, p. 13) (SE SER 1 68(II), p. 485).

in respect of which registration is sought, the same type
of goods are commonly found in the trade and the nature
of the marks influences the perception of the marks by
the targeted public.

— Infringement of Article 7(1)(b) of Regulation No 40/94:
the requirements imposed by the Court of First Instance
with respect to distinctiveness are too stringent.

— Infringement of Article 7(1)(b) of Regulation No 40/94:
the Court of First Instance imposes incorrect requirements
with respect to distinctiveness which are not provided for
in the Regulation by presuming, without any factual
basis, that the existence — assumed by it — of ‘a wide
variety of designs’ and the average consumer’s familiarity
with shapes similar to those at issue influence distinc-
tiveness.

(1) Not yet published in the European Court Reports.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark, OJ 1994 L 11, p. 1.

Reference for a preliminary ruling by the House of Lords,
by order of that court dated 17 December 2001, in the
case of Regina against Minister of Agriculture, Fisheries
and Food, Ex parte: S.P. Anastasiou (Pissouri) Limited and
others, Interveners: Cypfruvex (UK) Ltd, Cypfruvex Fruit
and Vegetable (Cypfruvex) Enterprises Ltd

Reference for a preliminary ruling by the Social Security
Commissioners, London, by order dated 28 March 2002,
in the case of Brian Francis Collins against Secretary of
State for Work and Pensions

(Case C-138/02)

(2002/C 144/39)

(Case C-140/02)

(2002/C 144/40)

Reference has been made to the Court of Justice of the
European Communities by an order of the Social Security
Commissioners, London, dated 28 March 2002, which was
received at the Court Registry on 12 April 2002,
for a
preliminary ruling in the case of Brian Francis Collins and
Secretary of State for Work and Pensions on the following
questions:

1.

2.

3.

Is a person in the circumstances of the claimant in the
present case a worker for the purposes of Regulation
No 1612/68 (1) of the Council of 15 October 1968?

If the answer to question 1 is not in the affirmative, does
a person in the circumstances of the claimant in the
present case have a right to reside in the United Kingdom
pursuant to Directive No 68/360 (2) of the Council of
15 October 1968?

If the answers to both questions 1 and 2 are not in the
affirmative, do any provisions or principles of European
Community law require the payment of a social security
benefit with conditions of entitlement like those for

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords
dated 17 December 2001, which was received at the Court
Registry on 16 April 2002, for a preliminary ruling in the case
of Regina against Minister of Agriculture, Fisheries and Food,
Ex parte: S.P. Anastasiou (Pissouri) Limited and others, Inter-
veners: Cypfruvex (UK) Ltd, Cypfruvex Fruit and Vegetable
(Cypfruvex) Enterprises Ltd, on the following questions:

1. Whether, where citrus fruit originating in one third
country has been shipped to another third country, the
special requirement that the packaging shall bear an
appropriate origin mark pursuant
to item 16.1 of
Annex IVA of Directive 77/93/EEC, now Directive 2000/
29/EC (1), can only be fulfilled in the country of origin or
whether it may alternatively be fulfilled in such other
third country?

2. Whether the official statement required by items 16.2 to
16.4 of Directive 2000/29/EC as to the country of origin
must be made by an official in the country of origin or