Case C-329/02 P: Appeal brought on 18 September 2002 (faxed on 12 September 2002) by SAT.1 SatellitenFernsehen GmbH against the judgment delivered on 2 July 2002 by the Second Chamber of the Court of First Instance of the European Communities in Case T-323/00 between SAT.1 SatellitenFernsehen GmbH and the Office for Harmonisation of the Internal Market
Date: 2002-11-23
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, action for annulment (EU), broadcasting, equal treatment, television, trade-mark law

23.11.2002

EN

Official Journal of the European Communities

C 289/11

1. Do Paragraphs 16 and 18 of the Sozialgesetzbuch (Code
of Social Law) relating to statutory sickness insurance
(‘SGB V’), which in this country make reimbursement of
the costs of dental treatment carried out by a dentist in
another Member State subject to authorisation based on
the merits of the case by the insured person’s social
security institution, infringe Articles 59 and 60 of the
EC Treaty, even where the national statutory sickness
insurance scheme is based on the benefit-in-kind principle
(and not, as in Case C-158/96 Kohll v Union des caisses
de maladie (1), on the cost-reimbursement principle)?

2.

If, depending on the answer to Question 1, the defendant
were to be required, for reasons connected with Com-
munity law, to reimburse the costs of the dental treatment
(in this case provided in the Republic of Austria), is the
amount of the claim for reimbursement governed by the
costs actually incurred or is that amount restricted to the
rates applicable under the national sickness insurance
scheme (in this case that of the Federal Republic of
Germany)?

( 1) European Court Reports 1998, page I-01931.

Action brought on 16 September 2002 by the Com-
mission of the European Communities against Hydrowatt
SARL (‘Hydrowatt’)

(Case C-323/02)

(2002/C 289/18)

An action against Hydrowatt Sarl (‘Hydrowatt’) was brought
before the Court of Justice of the European Communities on
16 September 2002 by the Commission of the European
Communities, represented by H. Støvlbæk, acting as Agent and
E. Cabau, lawyer, with an address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should order Hydrowatt to:

— pay

to the Commission the principal

25 109 euros,
23 422,91 euros, making a total of 48 531,91 euros;

together with default

sum of
interest of

— pay the Commission’s costs in these proceedings.

Pleas in law and main arguments

The action seeks reimbursement of the part of a subsidy
awarded under a contract for the completion of a project ‘New

group with turbine and generator adapted for low heads’,
which was terminated by Commission under Article 8. The
contract is governed by French law and the parties have agreed
to submit any disputes to the Court of Justice of the European
Communities.

Appeal brought on 18 September 2002 (faxed on 12 Sep-
tember 2002) by SAT.1 SatellitenFernsehen GmbH
against the judgment delivered on 2 July 2002 by the
Second Chamber of the Court of First Instance of the
European Communities in Case T-323/00 between SAT.1
SatellitenFernsehen GmbH and the Office for Harmonis-
ation of the Internal Market

(Case C-329/02 P)

(2002/C 289/19)

An appeal against the judgment delivered on 2 July 2002 by
the Second Chamber of the Court of First Instance of the
European Communities in Case T-323/00 between SAT.1
SatellitenFernsehen GmbH and the Office for Harmonisation
of the Internal Market (Trademarks and Designs) was brought
before the Court of Justice of the European Communities on
18 September 2002 (faxed on 12 September 2002) by
SAT.1 SatellitenFernsehen GmbH, represented by Reinhard
Schneider, Rechtsanwalt, Büsing, Müffelmann and Theye,
Marktstraße 3, D-28195 Bremen, with an address for service
in Luxembourg.

The appellant claims that the Court should:

1.

set aside the contested judgment (1),
in so far as it
dismissed the action (2) as formulated in the form of order
sought;

2.

order the Office to pay the costs.

Pleas in law and main arguments

— Infringement of Article 7(1)(b) of Council Regulation
No 40/94 on the Community trade mark (‘the Regu-
lation’):
the Court erred in law in finding that
Article 7(1)(b) of the Regulation also pursues the general
interest objective of allowing signs covered by that
provision to be used freely by everyone. There is,
however, no evident reason to assume that indications
which are merely not suitable for distinguishing goods or
services according to their origin must be available for
free use. In the present case it was therefore necessary for
the Court to examine whether the compound sign ‘SAT.2’

C 289/12

EN

Official Journal of the European Communities

23.11.2002

enables the relevant class of persons to distinguish the
services in question from services of another business
source. Instead the Court based its view that the sign in
question fell within the scope of Article 7(1)(b) of the
Regulation on the fact that it did not satisfy criteria for
protection governed by other provisions. It interprets
Article 7(1)(b) as a catch-all provision for cases in which
the trade marks applied for, despite having descriptive
character, do not fall within the scope of the grounds
for rejecting protection under Article 7(1)(c) of the
Regulation.

The splitting by the Court of the trade mark ‘SAT.2’ into
its component parts does not reflect
the view and
approach adopted by consumers. The distinctive charac-
ter or lack of distinctive character of the trade mark must
to some degree be apparent ‘at first sight’.

(in the alternative)

— Infringement of the principle of equal treatment: it may
be correct that a person cannot rely on a failure to apply
the law which has benefitted another person. In the
present case, however, the appellant did not point to
wrongly-decided isolated cases, but to the Office’s clearly
recognisable general practice of allowing in principle
applications for registration of trademarks consisting of a
combination of numbers and descriptive indications/
abbreviations. The appellant refers in this connection in
particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
920 157) and ‘B-MAIL’ (000 896 399).

at the Court Registry on 23 September 2002, for a preliminary
ruling in the proceedings between Saatgut-Treuhandverwal-
tungs-GmbH and Brangewitz GmbH on the following ques-
tions concerning the interpretation of Article 14(3), sixth
indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
1994 on Community Plant variety rights (OJ 1994 L 227,
p. 1) in conjunction with Article 9 of Commission Regulation
(EC) No 1768/95 (2) of 24 July 1995:

1. Are the abovementioned provisions to be interpreted as
meaning that the holder of a variety protected under
Regulation No 2100/94 can request the supplier of
processing services or the processor to provide the
information specified in those provisions, regardless of
whether there is any evidence that
the supplier of
processsing services has supplied a processing service in
respect of the protected variety concerned or that the
processor has processed the protected variety concerned?

2.

If there must be evidence for the factual situation referred
to in Question 1:

Must the supplier of processing services or processor
provide information pursuant
to Article 14(3), sixth
indent, of Regulation No 2100/94 in conjunction with
Article 9 of Regulation No 1768/95 with regard to all the
farmers to whom he has supplied the processing service
in respect of the protected variety concerned and/or for
whom he has carried out the processing of the protected
variety concerned, or only with regard to those farmers
in respect of whom the holder has evidence that the
supplier of processing services has supplied processing
services in respect of the protected variety concerned
and/or the processor has carried out the processing of the
protected variety concerned?

( 1) OJ 2002 C 202, p. 23.
( 2) OJ 2001 C 4, p. 5.

(1) OJ L 227, p. 1.
(2) OJ L 173, p. 14.

Reference for a preliminary ruling by the Landgericht
Düsseldorf by order of that Court of 17 September 2002
in the proceedings between Saatgut-Treuhandverwal-
tungs-GmbH and Brangewitz GmbH

Action brought on 24 September 2002 by Commission
of the European Communities against French Republic

(Case C-336/02)

(2002/C 289/20)

(Case C-340/02)

(2002/C 289/21)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Düsseldorf
(Regional Court, Düsseldorf) of 17 September 2002, received

An action against the French Republic was brought before the
Court of Justice of the European Communities on 24 Septem-
ber 2002 by the Commission of the European Communities,
represented by M. Nolin, acting as Agent, with an address for
service in Luxembourg.