Case C-173/04 P: Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-146/02 to T-153/02 between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2004-06-12
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, beverage, fruit juice, fruit product, packaging, trade-mark law

12.6.2004

EN

Official Journal of the European Union

C 156/5

3. If the answer to Question 1 is no, is Article 28 of the EC
Treaty to be interpreted as meaning that it in principle
precludes the current ban on imports despite the obligation
of
to obtain, upon request, alcoholic
beverages which it does not hold in stock?

the Systembolaget

4. If the answer to Question 3 is yes, can such a ban on
imports be considered justified and proportional in order to
protect health and life of humans?on the following question:

Appeal brought on 8 April 2004 (Fax: 6.4.04) by Deutsche
SiSi-Werke GmbH & Co. Betriebs KG against the judg-
ment delivered on 28 January 2004 by the Second
Chamber of the Court of First Instance of the European
Communities
in Joined Cases T-146/02 to T-153/02
between Deutsche SiSi-Werke GmbH & Co. Betriebs KG
and the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

shape of the marks applied for and to the possible future
use of stand-up pouches for ‘fruit drinks and fruit juices’.

— By applying that test, the Court of First Instance imposed
requirements in relation to the shape of the marks applied
for, which were too stringent in view of the low degree of
distinctiveness required.

— In its consideration of the general interest for the purposes
of Article 7(1)(b) of Regulation No 40/94,
the Court
focused solely on the general interest of potential competi-
tors and thereby failed to take account of the actual situa-
tion, namely that the appellant has been using stand-up
pouches for decades without being imitated. The general
interest of consumers was not taken into account at all.

(1) Not yet published in the Official Journal of the European Communities.

(Case C-173/04 P)

(2004/C 156/09)

Action brought on 13 April 2004 by the Commission of
the European Communities against the Italian Republic

An appeal against the judgment delivered on 28 January 2004
by the Second Chamber of the Court of First Instance of the
European Communities in Joined Cases T-146/02 to T-153/02
between Deutsche SiSi-Werke GmbH & Co. Betriebs KG and
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM) was brought before the Court of
Justice of the European Communities on 8 April 2004 (Fax:
6.4.04) by Deutsche SiSi-Werke GmbH & Co. Betriebs KG,
represented by its lawyer, Anja Franke, Grünecker Kinkeldey
Stockmair & Schwanhäusser, Maximilianstr. 58, D-80538,
Münich, and by Martin Augenanger, patent attorney, Maximi-
lianstr. 58, D-80538, Münich.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance of 28
January 2004 in Joined Cases T-146/02 to T-153/02; (1)

2. order OHIM to pay the costs both at first instance and on

appeal.

Pleas in law and main arguments

The appeal alleges that the Court of First Instance infringed
Community law.

— The Court was mistaken as to the relevant sector and conse-
quently the shapes of the packaging, which under Article
7(1)(b) of Regulation No 40/94 are to be taken into
account as a point of comparison for the purpose of asses-
sing the distinctive character of the trade marks for which
registration is sought. The Court's assessment was not based
on the shapes of packaging available on the market for the
products specifically applied for (‘fruit drinks and fruit
juices’) but on the market for ‘liquids for human consump-
tion’ in general. No consideration was given to the question
of the extent to which the marks applied for are different
from the usual packaging for drinks. The Court's examina-
tion was conducted solely by reference to an assumed basic

(Case C-174/04)

(2004/C 156/10)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 13 April
2004 by the Commission of the European Communities, repre-
sented by Enrico Traversa and Claudio Loggi, acting as Agents.

The applicant claims that the Court should:

— Declare that Decree-Law No 192 of 25 May 2001,
converted to Law No 301 of 20 July 2001, entitled ‘Urgent
provisions to ensure the liberalisation and privatisation of
particular public service sectors’
incompatible with
Article 56 of the EC Treaty in so far as it automatically
suspends
the voting rights attached to shareholdings
exceeding 2 % of the share capital of companies in the elec-
tricity and gas sectors;

is

— Order the Italian Republic to pay the costs.

Decree-Law 192/2001 conflicts with Article 56 of
the EC
Treaty because it automatically suspends the voting rights
attached to shareholdings exceeding 2 % of the share capital of
companies in the electricity and gas sectors. That threshold
engenders a separate and restrictive treatment of investments
on the part of a particular category of investors and therefore
obstructs the free movement of capital within the European
Community. In particular, that restriction is a disincentive to
any public undertakings which might wish to acquire shares in
the companies in question since such undertakings will be
unable to take any active role in the decision-making of the
company and exercise any influence over its management.