Case C-82/04 P: Appealbrought on 20 February 2004 (fax: 18 February 2004) by Audi AG against the judgment delivered on 3 December 2003 by the Second Chamber of the Court of First Instanceof the European Communities in Case T-16/02 between Audi AG and the Officefor Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, action for annulment (EU), motor vehicle industry, trade mark, trade-mark law

30.4.2004

EN

Official Journal of the European Union

C 106/21

2. If ‘redundancy’ is to be construed as meaning the notice of
dismissal, does the Directive require that both the consulta-
tion procedure under Article 2 of the Directive and the noti-
fication procedure under Articles 3 and 4 thereof must have
been concluded before the notices of dismissal are issued?

3. If ‘redundancy’

is to be construed as meaning the actual
termination of the employment relationship, is it sufficient
under the terms of the Directive if the consultation proce-
dure is also conducted only after the notices of dismissal
have been issued?

(1) OJ 1998 L 225, p. 16.

Appeal brought on 20 February 2004 (fax: 18 February
2004) by Audi AG against the judgment delivered on 3
December 2003 by the Second Chamber of the Court of
First Instance of the European Communities in Case T-16/
02 between Audi AG and the Office for Harmonisation in
the Internal Market (Trade Marks and Designs)

(Case C-82/04 P)

(2004/C 106/38)

An appeal against the judgment delivered on 3 December 2003
by the Second Chamber of the Court of First Instance of the
European Communities in Case T-16/02 between Audi AG and
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) was brought before the Court of Justice of
the European Communities on 20 February 2004 (fax: 18
February 2004) by Audi AG, represented by Rechtsanwälte
Preu Bohlig & Partner, Leopoldstr. 11a, D-80802 Munich.

The appellant claims that the Court should:

1. annul the judgment of the Court of First Instance of 3
December 2003 in Case T-16/02 (1) insofar as the action
was dismissed and the appellant ordered to pay the costs;

2. annul the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) of 8 November 2001 in Case R 652/2001-1;

3. order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs of the proceed-
ings at both instances.

Pleas in law and main arguments:

Infringement of Community law in the application of
the
provisions of Council Regulation (EC) No 40/94 of 20
December 1993 on the Community trade mark (2) and
Commission Regulation (EC) No 2868/95 of 13 December
1995 implementing Council Regulation (EC) No 40/94 on the
Community trade mark: (3)

Injection’. That

— The judgment under appeal is based on a misapplication of
Article 7(1)(c) of Regulation No 40/94. It is founded on the
finding made at the previous instances that the combination
of letters ‘TDI’ stands for ‘Turbo Diesel Injection’ or ‘Turbo
Direct
finding is inconsistent with the
substantive provisions of Article 7(1)(c) and was made in
breach of the relevant procedural principles. Neither at the
previous instances nor in the judgment under appeal were
any statements made or reasons given as to where and how
‘TDI’ is used in normal language. The findings as to what
terms the relevant public imagines the combination of
letters ‘TDI’ to stand for and thus associate with the sign
‘TDI’ remain pure speculation.
In the present case, no
specific association in the minds of the relevant public
between the sign ‘TDI’ and the goods/services in question
can be identified. Therefore, the conclusion that registration
of the sign ‘TDI’ is precluded by the ground for refusal in
Article 7(1)(c) of Regulation No 40/94 constitutes an error
in law.

— The reasons given by the Court of First Instance in the judg-
ment under appeal with respect to the appellant's complaint
that the refusal to register the mark TDI infringes Article
7(3) of Regulation No 40/94 likewise constitute errors in
law. No reasons are given with respect to the assessment of
the degree of market acceptance. There is also a lack of
reasoning in the judgment under appeal
insofar as it is
claimed in general terms that the facts found are insufficient
to prove that the mark sought has become distinctive as a
result of use in the Member States other than Germany. At
no point in the judgment is that claim substantiated.

— The judgment under appeal and the decisions of OHIM on
which it is based infringe the principle of ex proprio motu
investigation and the principle derived therefrom that the
question whether there are grounds for refusing an applica-
tion for registration is to be determined on the basis of an
examination of the specific circumstances of the individual
case. The applicable principle of ex proprio motu investiga-
tion entails an obligation of the authority to determine how
a word mark will be understood by the relevant public and
to substantiate its finding by reference to the specific
circumstances of the case. In the present case, that principle
has been infringed to the detriment of the appellant.

(1) Not yet published in the European Court Reports.
(2) OJ 1994 L 11, p. 1.
(3) OJ 1995 L 303, p. 1.