Judgment of the Court (Second Chamber) of 7 October 2004 in Case C-136/02 P: Mag Instrument Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional torch shapes — Absolute ground for refusal — Distinctive character)
Date: 2004-12-04
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), infringement of EU law, judicial proceedings, trade-mark law

C 300/6

EN

Official Journal of the European Union

4.12.2004

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 14 October 2004

(Second Chamber)

of 7 October 2004

in Case C-113/02: Commission of the European Commu-
nities v Kingdom of the Netherlands (1)

(Regulation (EEC) No 259/93 on the supervision and control
of shipments of waste — Directive 75/442 on waste —
National measure providing for objections to shipments of
waste for recovery where 20 % of the waste is recoverable in
the Member State and the percentage of waste recoverable in
the country of destination is lower — Measure of a Member
State classifying an operation under point R1 (recovery by
incineration) of Annex IIB to Directive 75/442 or under
point D10 (disposal by incineration) of Annex IIA to that
directive not according to the criterion of actual use but
according to the calorific value of the incinerated waste)

(2004/C 300/10)

(Language of the case: Dutch)

in Case C-136/02 P: Mag Instrument Inc. v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) (1)

(Appeal — Community trade mark — Article 7(1)(b) of
torch
Regulation (EC) No 40/94 — Three-dimensional
shapes — Absolute ground for refusal — Distinctive char-
acter)

(2004/C 300/11)

(Language of the case: German)

(Provisional translation: the definitive translation will be published in
the European Court Reports)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-113/02 — action under Article 226 EC for failure to
fulfil obligations, brought on 27 March 2002, Commission of
the European Communities (Agents: H. van Lier, M. van der
Woude and R. Wezenbeek-Geuke) against Kingdom of
the
Netherlands
(First
Chamber), composed of: P. Jann, (Rapporteur) President of the
Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von
Bahr; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a
judgement on 14 October 2004, in which it:

(Agent: H.G. Sevenster) — the Court

1. Declares that the Kingdom of the Netherlands has failed to fulfil
its obligations under Article 7(4) of Council Regulation (EEC) No
259/93 of 1 February 1993 on the supervision and control of
shipments of waste within, into and out of the European Com-
munity and under Article 1(e) and (f) of Council Directive
75/442/EEC of 15 July 1975 on waste, as amended by Council
Directive 91/156/EEC of 18 March 1991 and Commission
Decision 96/350/EC of 24 May 1996;

In Case C-136/02 P: Appeal under Article 49 of the EC Statute
of the Court of Justice, lodged at the Court on 8 April 2002,
Mag Instrument Inc. established in Ontario, California (United
States of America) (Agents: initially A. Nette, G. Rahn, W. von
der Osten-Sacken and H. Stratmann, and subsequently W. von
der Osten-Sacken, U. Hocke and A. Spranger, Rechtsanwälte),
the other party to the proceedings being: Office for Harmonisa-
tion in the Internal Market (Trade Marks and Designs) (Agent:
D. Schennen) — the Court (Second Chamber), composed of:
C.W.A. Timmermans, President of the Chamber, C. Gulmann,
J.-P. Puissochet, J.N. Cunha Rodrigues and F. Macken (Rappor-
Judges; D. Ruiz-Jarabo Colomer, Advocate General; L.
teur),
Hewlett, Principal Administrator, for the Registrar, has given a
judgment on 7 October 2004, in which it:

1. Dismisses the appeal;

2. Orders the Kingdom of the Netherlands to pay the costs.

2. Orders Mag Instrument Inc. to pay the costs.

(1) OJ C 144 of 15.6.2002.

(1) OJ C 144 of 15.6.2002.