Case C-109/03: Reference for a preliminary ruling by the College van Beroep voor het bedrĳfsleven by judgment of that Court of 8 January 2003 in the case of KPN Telecom B.V. against Onafhankelĳke Post en Telecommunicatie Autoriteit; Interested parties: Denda Multimedia B.V. and Denda Directory Services B.V.
Date: 2003-05-24
Institutions: Court of Justice
Subjects: consumer protection, interpretation of the law, supplies contract, telecommunications, telephone

C 124/6

EN

Official Journal of the European Union

24.5.2003

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
12 December 2002 in Case T-63/01 and, in consequence
thereof,

— primarily: apply Article 54 of the Statute of the
Court of Justice and give final
judgment in the
matter, upholding the form of order sought by the
appellant before the Court of First Instance;

— in the alternative: refer the case back to the Court of

First Instance for judgment;

— in any event: order OHIM to pay the costs.

Pleas in law and main arguments

— Plea alleging breach of the presumption that documents
may be relied on or inconsistency in the grounds of the
judgment:

Contrary to what the Court of First Instance states, the
sign reproduced does not present any of the 24 rectangles
or any of the six parallelograms of which a rectangular
parallelepiped consists.

— Plea alleging misconstruction of the concept of distinctive

character:

it

When it is necessary to determine whether a sign is
capable of fulfilling its function as an individual mark
for specific goods or services, when the merits of an
application for registration as an individual mark for
those goods and services are being examined,
is
necessary to reason in terms of the presumed perception
of the use which might be made of the sign and not in
terms of the actual perception of any actual use already
made of the sign. The Court of First Instance maintains
that the distinctive character of the sign must be assessed
in relation ‘to the perception of the relevant public’. In
that regard, the relevant public consists of all persons
likely to find themselves in the presence of the sign and
cannot therefore be reduced to the much more restricted
circle of consumers likely to acquire the goods or services
which the sign is supposed to designate.

Furthermore, the Court of First Instance indirectly but
definitely misconstrued the concept of distinctive charac-
ter when it failed to rule on whether or not the sign was
incapable of distinguishing one bar of soap from another
as coming from a specific undertaking, but rather whether
the imperfect picture of that sign had such capacity.

Last, the Court of First
Instance misunderstood the
concept of distinctive character by completely disre-
garding the multifunctionality of signs. It is not because
it might be presumed that, in the presence of the sign in

issue, the public will perceive above all or primarily a sign
that fulfils a technical or ornamental function that the
performance of its function as an individual trade mark
would be precluded or even reduced.

Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court
of 8 January 2003 in the case of KPN Telecom B.V. against
Onafhankelijke Post en Telecommunicatie Autoriteit;
Interested parties: Denda Multimedia B.V. and Denda
Directory Services B.V.

(Case C-109/03)

(2003/C 124/10)

Reference has been made to the Court of
Justice of the
European Communities by order of the College van Beroep
voor het bedrijfsleven (Administrative Court for Trade and
Industry) of 8 January 2003, received at the Court Registry on
10 March 2003, for a preliminary ruling in the case of KPN
Telecom B.V. against Onafhankelijke Post en Telecommunica-
tie Autoriteit; Interested parties: Denda Multimedia B.V. and
Denda Directory Services B.V. on the following questions:

1.

Is ‘relevant information’ in Article 6(3) of Directive 98/
10/EC (1) to be interpreted as meaning only the numbers
together with the name, address, town/city and postcode
of the person to whom the number has been issued and
any entry as to whether the number is used (exclusively)
as a fax line published by the organisations concerned or
does ‘relevant information’ also cover other data at the
disposal of
the organisations such as an additional
entry relating to a profession, another name, another
municipality or mobile telephone numbers?

2.

Is ‘meet (...) reasonable requests (...) on terms which
are fair, cost oriented and non-discriminatory’
in the
provision referred in Question 1 to be interpreted as
meaning that:

a)

b)

numbers together with the name, address, town/city
and postcode of the person to whom the number
has been issued must be made available for a
remuneration of only the marginal costs involved in
actually making them available, and

data other than those referred to in paragraph (a)
must be made available for a remuneration intended
to cover the costs of what the provider of these data
shows he has incurred in obtaining or providing
these data?

(1) OJ L 101 [1998], p. 24.