Case C-120/04: Referencefor a preliminary ruling from the Oberlandesgericht Düsseldorf of 17 February2004 in proceedings between MEDION AG and THOMSON multimedia SalesGermany & Austria GmbH
Date: 2004-04-30
Institutions: Court of Justice
Subjects: brand name, interpretation of the law, trade mark, trade-mark law

30.4.2004

EN

Official Journal of the European Union

C 106/31

Action brought on 4 March 2004 by the Commission of
the European Communities against the Italian Republic

(Case C-119/04)

(2004/C 106/54)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 4 March
2004 by the Commission of the European Communities, repre-
sented by Enrico Traversa and Laura Pignatoro-Nolin, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by not

taking the measures necessary to
comply with the judgment of the Court of Justice of the
European Communities of 26 June 2001 in Case C-212/99
concerning recognition of the acquired rights of former
foreign-language
Italian
Republic has failed to fulfil its obligations under Article 39
of the EC Treaty;

in universities,

assistants

the

— Order the Italian Republic to pay to the Commission a
penalty payment of EUR 309,750 per day of delay in
complying with the judgment in Case C-212/99 from the
day on which the judgment in the present case is delivered
until the day on which the judgment in Case C-212/99 is
complied with;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The present action concerns the failure of the Italian Republic
to comply with the judgment of 26 June 2001 in Case C-212/
99 in so far as it has not adopted adequate measures since the
delivery of that judgment to ensure recognition of the acquired
foreign-language assistants who became
rights of
employed language teachers, whereas those rights have been
recognised in respect of the majority of Italian employees.

former

The Italian Republic has provided no specific data or schedule
enabling a determination to be made as to whether remunera-
tion of those former assistants is equivalent to that of Italian
employees with the same experience.

Pursuant to Article 228(2) EC, the Commission asks that the
Court impose on the Italian Republic a penalty payment of
EUR 309,750 for each day's delay in complying with the judg-
ment of the Court in Case C-212/99, from the day on which
the Court delivers its judgment in the present case.

Reference for a preliminary ruling from the Oberlandes-
gericht Düsseldorf of 17 February 2004 in proceedings
between MEDION AG and THOMSON multimedia Sales
Germany & Austria GmbH

(Case C-120/04)

(2004/C 106/55)

The Oberlandesgericht (Higher Regional Court) Düsseldorf, on
the basis of its decision of 17 February 2004, received at the
Court's Registry on 5 March 2004, in the proceedings pending
before that court between MEDION AG and THOMSON multi-
media Sales Germany & Austria GmbH, refers to the Court of
Justice for the European Communities for a preliminary ruling
the following question:

Is Article 5(1)(b) of First Council Directive 89/104/EEC (1) of 21
December 1988 to approximate the laws of the Member States
relating to trade marks (OJ 1989 L 40, p.1; hereinafter ‘the
Trade Mark Directive’) to be interpreted as meaning that there
is a likelihood of confusion on the part of the public owing to
the identity of the goods or services covered by competing
signs in a case where an earlier word mark with normal distinc-
tiveness is reproduced in a later composite word sign belonging
to a third party, or in a word or figurative sign belonging to a
third party that is characterised by parts of a word, in such a
way that the third party's company name is placed in front of
the earlier mark and the earlier mark, though not alone charac-
terising the overall impression conveyed by the composite sign,
has an independent distinctive role within the composite sign?

In those circumstances, the Commission must declare that the
Italian Republic has not
taken the measures necessary to
comply with that judgment of the Court, thereby failing to
fulfil the obligation laid down by Article 228(1) EC.

(1) OJ 1989 L 40, p.1