Case C-323/03: Action brought on 24 July 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-10-04
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, freedom to provide services, maritime transport, public service

4.10.2003

EN

Official Journal of the European Union

C 239/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 6 June 2003, in the case of Dyson Ltd
against Registrar of Trade Marks

Action brought on 24 July 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-321/03)

(2003/C 239/01)

(Case C-323/03)

(2003/C 239/02)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 6 June
2003, which was received at the Court Registry on 24 July
2003, for a preliminary ruling in the case of Dyson Ltd and
Registrar of Trade Marks on the following questions:

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 24 July
2003 by the Commission of the European Communities,
represented by I. Martínez del Peral and K. Simonsson, acting
as Agents, with an address for service in Luxembourg.

1.

In a situation where an applicant has used a sign (which
is not a shape) which consists of a feature which has a
function and which forms part of the appearance of a
new kind of article, and the applicant has, until the date
of application, had a de facto monopoly in such articles,
is it sufficient, in order for the sign to have acquired a
distinctive character within the meaning of Article 3(3)
of Directive 89/104/EC (1), that a significant proportion
of the relevant public has by the date of application for
registration come to associate the relevant goods bearing
the sign with the applicant and no other manufacturer?

2.

If that is not sufficient, what else is needed in order for
the sign to have acquired a distinctive character and, in
particular, is it necessary for the person who has used the
sign to have promoted it as a trade mark?

( 1) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks, OJ L040, 11.02.1989, p. 1-7.

The applicant claims that the Court should:

1.

declare that, by maintaining in force rules which:

— allow maritime transport services in the Vigo estuary
to be entrusted to a single operator for a period of
20 years and which include as a criterion for the
award of the right to operate the services experience
in transport in the Vigo estuary, which favours the
existing operator;

— allow seasonal transport services with the islands or
regular transport services between continental ports
to be subject to public-service obligations;

— permit the introduction of a more restrictive system
in force on the date on which the
than that
Regulation entered into force (January 1993), that is
to say, the Decision of 11 June 1984;

C 239/2

EN

Official Journal of the European Union

4.10.2003

— were never the subject of consultation with the

The appellant claims that the Court should:

Commission before being approved,

the Kingdom of Spain has infringed Articles 1, 4, 7 and 9
of Regulation No 3577/92 (1) and has failed to fulfil its
obligations under that regulation and the EC Treaty.

2.

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Vigo estuary is within the territorial scope of Regulation
No 3577/92. That regulation was not designed to regulate
competence in a specific market. The fact that sea traffic
between the ports of the Vigo estuary is local does not preclude
the application of the principle of freedom to provide services.

( 1) Council Regulation (EEC) No 3577/92 of 7 December 1992
applying the principle of freedom to provide services to maritime
transport with Member States (maritime cabotage), OJ L 364,
12.12.1992, p. 7.

Appeal brought on 25 July 2003 by José Luis Zuazaga
Meabe against the order delivered on 28 April 2003 by
the Court of First Instance of the European Communities
(Second Chamber) in Case T-15/03 between José Luis
Zuazaga Meabe and the Office for Harmonisation in
the Internal Market (OHIM), the other party to the
proceedings before the Board of Appeal being Banco de
Bilbao Vizcaya Argentaria S.A.

(Case C-325/03 P)

(2003/C 239/03)

An appeal against the order delivered on 28 April 2003 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-15/03 between José Luis Zuazaga
Meabe and the Office for Harmonisation in the Internal Market
was brought before the Court of Justice of the European
Communities on 25 July by José Luis Zuazaga Meabe, rep-
resented by José Antonio Calderón Chavero and Natalia Moya
Fernández, with an address for service in Luxembourg, the
other party to the proceedings before the Board of Appeal
being Banco de Bilbao Vizcaya Argentaria S.A.

1.

2.

quash the order of the Court of First Instance (Second
Chamber) delivered on 28 April 2003 in Case T-15/03,
the applicant having shown all the requisite care and
attention for the transmission of documents to the Court
of First Instance;

consequently, to refer the case back to the Court of First
Instance for a declaration that the action for annulment
in Case T-15/03 is admissible, and for proceedings to
continue before the Court of First Instance on the basis
of the claims submitted in the application against the
decision of the Second Board of Appeal of OHIM of
24 October 2002 in Case R 918/2001-2, concerning
opposition proceedings between José Luis Zuazaga Meabe
and Banco Bilbao Vizcaya Argentaria S.A.

Pleas in law and main arguments

— Infringement of Article 45 of the Statute of the Court of
Justice: the applicant pleads the existence of unfavourable,
unforeseen and unavoidable circumstances which were
beyond his control, which prove the existence of unfore-
seeable circumstances or force majeure. The confirmation
by registered letter lodged with the Spanish postal services
on 7 January 2003 of the application, transmitted to the
Court of First Instance by fax on 3 January 2003, was
ineffective for reasons beyond the applicant’s control.
The principle of proportionality therefore requires the
Court of First Instance to adopt a flexible approach.

— Infringement of Articles 102 of the Rules of Procedure of
the Court of First Instance and Article 81(2) of the Rules
of Procedure of the Court of Justice: the applicant submits
that, to the ordinary time-limit extended by ten days on
account of distance may be allowed an additional ten
days for a definite confirmation of the document trans-
mitted by fax.

— Infringement of Article 103 of the Rules of Procedure of
the Court of First Instance and Article 82 of the Rules of
Procedure of the Court of Justice: the applicant claims
that the principle of proportionality can and should be
applied to set the deadline in a flexible manner in cases
such as this, where the applicant sent the document in
advance by fax.