Case C-447/02 P: Appeal brought on 11 December 2002 by KWS Saat AG 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-173/00 between KWS Saat AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2003-03-08
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), designs and models, trade-mark law

C 55/6

EN

Official Journal of the European Union

8.3.2003

1. Must Regulation No 2913/92 (1) (the Community Cus-
toms Code) and Regulation No 2454/93 (2) (the regu-
lation implementing the Community Customs Code), in
particular Article 379(1) of the regulation implementing
the Community Customs Code, be construed as meaning
that the customs debt arising by reason of an offence or
irregularity in connection with external Community
transit cannot be recovered by the office of departure
from the principal if the principal did not, before the end
of the eleventh month following the date of registration
of the Community transit declaration, receive the notifi-
the regulation
cation referred to in Article 379 of
implementing the Community Customs Code?

2. Does the fact that the office of departure did not follow
an administrative instruction for the transmission of
information laid down in the Customs Code Committee
(early warning system) or that the authorities in the office
of departure can be criticised for failure to notify in good
time have any bearing on the answer to this question?

( 1) OJ L 302 [1992], p. 1.
( 2) OJ L 253 [1993], p. 1.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 October 2002 in the case
of Hauptzollamt Hamburg-Jonas against Gouralnik &
Partner GmbH

(Case C-446/02)

(2003/C 55/12)

Justice of the
Reference has been made to the Court of
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 29 October 2002, received at the
Court Registry on 10 December 2002, for a preliminary ruling
in the case of Hauptzollamt Hamburg-Jonas against Gouralnik
& Partner GmbH on the following questions:

1. Does an entitlement to an export refund exist at least at
the rate of refund applicable to the product actually
exported where it is established during a control by
the customs authorities that the declared and exported
consignment did not consist entirely of the declared
product but contained a proportion of another product
to which a lower rate of refund applied?

Reference for a preliminary ruling by the Vestre Landsret
by order of that Court of 15 November 2002 in the case
of Fonden Marselisborg Lystbådehavn against Skattemini-
steriet

2. Does the fact that the product which was incorrectly
declared is similar to that actually declared have any
bearing on the decision?

(Case C-428/02)

(2003/C 55/11)

3.

If Question 2 is answered in the affirmative, in accordance
with which criteria must it be determined whether the
declaration also covers the incorrectly declared goods?

Reference has been made to the Court of Justice of the
European Communities by order of
the Vestre Landsret
(Western Regional Court) of 15 November 2002, received at
the Court Registry on 26 November 2002, for a preliminary
ruling in the case of Fonden Marselisborg Lystbådehavn against
Skatteministeriet (Ministry of Fiscal Affairs) on the following
questions:

1) Must Article 13.B(b) of the Sixth VAT Directive (Council
Directive 77/388) (1) be construed as meaning that the
term ‘letting of immovable property’ includes the letting
of a boat site consisting of a section of a land-based port
area and of a defined and identifiable water-based area?

2) Must Article 13.B(b)(2) of the Sixth VAT Directive be
construed as meaning that the term ‘vehicles’ includes
boats?

( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization 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 13.6.1977, p. 1).

Appeal brought on 11 December 2002 by KWS Saat AG
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-173/00 between KWS
Saat AG and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case C-447/02 P)

(2003/C 55/13)

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-173/00 between KWS Saat
AG and the Office for Harmonisation in the Internal Market

8.3.2003

EN

Official Journal of the European Union

C 55/7

(Trade Marks and Designs) was brought before the Court of
Justice of the European Communities on 11 December 2002
by KWS Saat AG, represented by Dr Christian Rohnke,
Jungfernstieg 51, D-20354 Hamburg, with an address for
service in Luxembourg.

Reference for a preliminary ruling by the Bundesfinanz-
hof by order of that Court of 29 October 2002 in the case
of Hauptzollamt Bremen against Joh. C. Henschen GmbH
& Co. KG

The appellant claims that the Court should:

1.

2.

set aside the judgment of the Court of First Instance of
9 October 2002 in Case T-173/00 (1) in so far as it
dismisses the action;

annul the decision of the Board of Appeal of 19 April
2000 in Case R 282/1999-2), in so far as that has not
already occurred as a result of the judgment of the Court
of First Instance in Case T-173/00;

3.

order the defendant to pay the costs.

Grounds of appeal and main arguments

failed to recognise

— The Court of First Instance wrongly rejected the appli-
that
cant’s claims. The Court
Article 74(1) of Regulation No 40/94 was infringed if
only because up until the time of its appeal decision the
Office did not in fact carry out any examination of its
own. The reference for the first time in the appeal decision
to the web page of a single producer also infringes the
right to a fair hearing. Finally, the Court was compelled,
in order to support the decision of the Board of Appeal, to
construct its own replacement reasoning which, however,
lacks detail and is formulaic.

— The Court of First Instance wrongly rejected the factual
claims concerning the distinctive character of the colour
(corresponding to colour code HKS7).
mark ‘orange’
When assessing the distinctive character of colour marks,
criteria different from those for other types of marks
cannot be applied. It is immaterial whether other colours
are used for identifying certain characteristics of the
goods at issue. Rather, it must be examined whether the
specific colour applied for is understood by the public as
a reference to a characteristic. If different manufacturers
use different colours as references to a characteristic, the
public will see in those colours at least at the same time a
reference to the producer. The colour ‘orange’ is not
understood by the relevant public as a reference to a
characteristic of the goods at issue. Nor is a decorative or
functional use possible. Therefore the mark has distinctive
character.

(Case C-451/02)

(2003/C 55/14)

Justice of the
Reference has been made to the Court of
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court) of 29 October 2002, received at the
Court Registry on 12 December 2002, for a preliminary ruling
in the case of Hauptzollamt Bremen against Joh. C. Henschen
GmbH & Co. KG on the following questions:

1.

2.

3.

Is a customs debt on importation incurred under
Article 203(1) of Regulation (EEC) No 2913/92 (1) where
goods in temporary storage are removed from their place
of storage without
the authorisation of the customs
authority where the goods were presented and are then
presented again to another customs office without first
having been placed under the Community transit pro-
cedure required for their movement?

If Question 1 should be answered in the negative: In the
circumstances described in Question 1 is there a non-
in the
fulfilment of an obligation that could result
incurrence of a customs debt on importation under
Article 204(1)(a) of Regulation (EEC) No 2913/92?

If Question 2 should be answered in the affirmative:
Should Article 859, point 6, of Regulation (EEC)
No 2454/93 (2) be interpreted as meaning that it applies
even if goods in temporary storage are moved to a
free warehouse in breach of the formalities relating to
temporary storage?

4.

If Question 3 should be answered in the negative:

(a)

Should Article 859, point 5, of Regulation (EEC)
No 2454/93 be interpreted as referring only to an
unauthorised movement of goods that could have
been authorised by the customs office, or does it
mean any movement of goods at all?

(b) Should Article 859, point 5, of Regulation (EEC)
No 2454/93 be interpreted as meaning that the
condition laid down in that provision,
that the
goods in temporary storage can be presented to the
customs authorities at their request, is fulfilled only
if the goods are presented again to the customs
office where they were originally presented, or is the
condition fulfilled even if the goods are presented
again to any customs office at all — even if it is in
another Member State?

( 1) OJ C 323, 21.12.2002.

(1) OJ L 302, p. 1.
(2) OJ L 253, p. 1.