Case C-445/02 P: Appeal brought on 9 December 2002 by Glaverbel against the judgment delivered on 9 October 2002 by the Second Chamber of the Court of First Instance of the European Communities in case T-36/01 between Glaverbel and the Office for Harmonization in the Internal Market (Trademarks and Designs) (OHIM)
Date: 2003-02-08
Institutions: Court of Justice
Subjects: Belgium, EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), sugar industry

C 31/12

EN

Official Journal of the European Union

8.2.2003

duces into the Community legal order, be construed as
meaning that the terms ‘biocidal products’ and ‘low-risk
biocidal product’ refer solely to products whose biocidal
function depends on active substances added to those
products by chemical or biological means through pro-
cesses expressly designed to add such substances in order
to confer on those products a biocidal function?

2. Must Article 2(1)(c) of Directive 98/8/EC, in the light of
the general rules which that directive introduces into the
Community legal order, be construed as meaning that the
term ‘basic substance’ refers to substances which are not
added to a product in order to enable it to perform an
intended biocidal function but such a biocidal function is
performed in addition to the function normally perfor-
med by that product during its use (as an example: liquid
for a dishwasher which, by virtue of the addition of a
substance designed to improve its detergent function,
may also have a bactericidal function)?

3. May a piece of red cedar wood, simply by virtue of the
fact that it is marketed as being ‘anti-moth’, be classifiable
as a ‘biocidal product’, as a ‘low-risk biocidal product’ or
as a ‘basic substance’ within the meaning of Directive 98/
8/EC, bearing in mind that: (a) the wood in question has
in no way been treated chemically or biologically; (b) the
substance on which the effects attributed to the wood
may depend is naturally present in the product; (c) the
product is substantially marketed as found in its natural
state?

4. Must Article 2(1)(c) of Directive 98/8/EC be construed as
meaning that it is only if a ‘basic substance’ is included
on the list referred to in Annex IB that that substance
may be exempted from the authorisation and registration
provided for the marketing in the Member States of
products covered by Article 2, with such inclusion on the
list referred to in Annex IB thus acquiring constitutive
effectiveness for all purposes?

5. Must Article 4 of Directive 98/8/EC, by reference to
Articles 28 EC and 30 EC, be construed as meaning that
a product such as that described in Question 3, placed
lawfully on the market in a Member State without any
need for authorisation or registration in that Member
State, may be made subject to authorisation or regis-
tration in another Member State in which it
is sub-
sequently marketed by reason of the fact that the product
in question is not included on the list referred to in
Annex IB to Directive 98/8/EC?

( 1) Directive 98/8/EC of the European Parliament and of the Council
of 16 February 1998 concerning the placing of biocidal products
on the market (OJ L 123 of 24.04.1998, p. 1).

Reference for a preliminary ruling by the Monomeles
Protodikio Athinon by order of that Court of 11 July
2002 in the case of Fixtures Marketing Limited against
Organismos Prognostikon Agonon Podosphairou AE

(Case C-444/02)

(2003/C 31/17)

Justice of the
Reference has been made to the Court of
European Communities by order of the Monomeles Protodikio
Athinon (Single-Judge Court of First Instance, Athens) of
11 July 2002, received at the Court Registry on 9 December
2002, for a preliminary ruling in the case of Fixtures Marketing
Limited against Organismos Prognostikon Agonon Podosphai-
rou AE (Football-match-results-forecasting Undertaking) on
the interpretation of Article 7 of Directive 96/9/EC and the sui
generis right thereunder in connection with the following
issues:

1.

2.

the concept of databases and the scope of Directive 96/
9/EC (1) and in particular Article 7 thereof (sui generis
right).

Further to determination of the scope of the directive,
whether the lists of football fixtures enjoy protection as
databases over which there is a sui generis right in favour
of the maker and with what consequences.

3. How exactly the database right is infringed and whether
it is protected in regard to rearrangement of the contents
of the database.

(1) OJ L 77 of 27.3.1996, p. 20.

Appeal brought on 9 December 2002 by Glaverbel against
the judgment delivered on 9 October 2002 by the Second
Chamber of the Court of First Instance of the European
Communities in case T-36/01 (1) between Glaverbel and
the Office for Harmonization in the Internal Market
(Trademarks and Designs) (OHIM)

(Case C-445/02 P)

(2003/C 31/18)

An appeal against the judgment delivered on 9 October 2002
by the Second Chamber of the Court of First Instance of the
European Communities in case T-36/01 between Glaverbel
and the Office for Harmonization in the Internal Market
(Trademarks and Designs) (OHIM), was brought before the
Court of Justice of the European Communities on 9 December
2002 by Glaverbel, represented by Susanne Möbus, Attorney
at Law, with an address for service in Luxembourg.

8.2.2003

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Official Journal of the European Union

C 31/13

The Appellant claims that the Court should:

1.

2.

annul the judgment of the Court of First Instance of
9 October 2002 in Case T-36/01 Glaverbel v. Office for
Harmonization (glass pattern) in so far as it found that
the First Board of Appeal of the Office for Harmonization
in the Internal Market (Trademarks and Designs) did not
infringe Article 7 (1)(b) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community
trademark (2) in adopting its decision of 30 November
2000 (Case R 137/2000-1).

annul the decision of
the First Board of Appeal of
the Office of Harmonization in the Internal Market
(Trademarks and Designs) of 30 November 2000 (Case R
137/2000-1)
in so far as it refused the application
No. 811 281 for registration of a design applied to a
surface of the goods (glass pattern) as a trademark on the
basis of Article 7 (1)(b) of Regulation No 40/94;

3.

orders the Office for Harmonization in the Internal
Market (Trademarks and Designs) to pay the costs both
at first instance and on appeal.

Pleas in law and main arguments

By annulling the contested decision for the infringement of a
right to a hearing with respect to the arguments based on
Article 7 (3) of Regulation No 40/94 and in doing so on that
ground alone, the contested judgment allowed that part of the
decision relating to the registrability of
the Community
trademark application in respect of Article 7 (1)(b) of the
Regulation to stand.

The Appellant maintains that in order for the OHIM to
take the necessary measures to comply with the contested
judgment, the OHIM could therefore simply confine itself to
considering the arguments submitted by the Appellant in
respect of Article 7 (3) without altering its interpretation of
Article 7 (1)(b) of the Regulation. Accordingly the Appellant
submits that it has an interest in appealing the contested
judgment.

findings that the relevant consumer is not used to regarding
designs applied to the surface of glass sheets as an indication
of the trade origin of the goods, and that the design is not
immediately recognisable as an indication of the trade origin
of the goods but as a functional component.

(1) OJ C 118, 21.04.2001, p. 41.
(2) OJ L 011, 14.01.1994, p. 1.

Action brought on 11 December 2002 by the Hellenic
Republic against the Commission of the European Com-
munities

(Case C-448/02)

(2003/C 31/19)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 11 December 2002 by the Hellenic Republic,
represented by Ioannis Khalkias and Georgios Kanellopoulos,
Members of the State Legal Service, with an address for service
in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix.

The applicant claims that the Court should:

— annul or, in the alternative, amend Commission Decision
C(2002) 3771 of 14 October 2002 amending Decision
1999/187/EC (1), relating to the exclusion from Com-
munity funding of certain expenditure incurred by the
Member States within the framework of the Guarantee
Section of the EAGGF (2), so far as concerns financial
corrections to the detriment of the Hellenic Republic in
the arable crops sector for the financial year 1995.

The Appellant submits that the CFI was wrong in finding that
the sign in question is devoid of any distinctive character for
the purposes of Article 7 (1)(b) of Regulation No 40/94 and
finding is based on a wrong assessment and
that
interpretation of the aforementioned article. The Appellant
also maintains that the Board of Appeal was not correct in its

that

Grounds for annulment and main arguments

— The differences are not actual;

incorrect interpretation
and application of Article 5(2)(c) of Regulation (EEC)
No 729/70.