Case C-121/05 P: Appeal brought on 15 March 2005 (fax: 11 March 2005) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment delivered on 12 January 2005 by the Court of First Instance (Third Chamber) in Case T-334/03 between Deutsche Post Euro Express GmbH and the Office for Harmonisation in the Internal Market.
Date: 2005-06-11
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), pulp and paper industry, trade-mark law, wood industry

C 143/16

EN

Official Journal of the European Union

11.6.2005

The right of the Federal Republic of Germany and the Land
Lower Saxony to make appointments to the supervisory board
under the VW-Gesetz, notwithstanding the provisions of the
Aktiengesetz, restricts the rights of other shareholders to appro-
priate representation on the company's supervisory board.
Since, as the Court has held on several occasions, a provision
which restricts the acquisition of shares, or in some other way
restricts the possibility of actual participation in the manage-
ment of a company or in its control, constitutes a restriction
on the free movement of capital,
that statutory provision
constitutes a restriction on the free movement of capital,
contrary to Community law.

A restriction on the free movement of capital is justified only
on the grounds referred to in Article 58 EC or on so-called
overriding grounds relating to the public interest. According to
the criteria established by the Court, such public interest
measures must not be discriminatory, must be objectively
necessary and must be proportionate in relation to the objec-
tive being pursued. In particular, those grounds must apply to
all persons or undertakings pursuing an activity in the territory
of the host Member State. General financial interests which are
outside the scope of those grounds in Article 58 EC relating to
tax law, as well as other economic aims of the Member State
cannot, according to settled case-law,
justify any restriction
prohibited under the EC Treaty. By the standards of Article 56
EC and relevant case-law, the provisions of the aforementioned
VW-Gesetz constitute indirect
for
which there is no relevant justification under Community law.

restrictions on earnings

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 2 March 2005 in Hein-
rich Schulze GmbH & Co. KG i.L represented by the liqui-
dator, Ravensberger Honig GmbH v Hauptzollamt
Hamburg-Jonas

(Case C-120/05)

(2005/C 143/23)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg
(Hamburg Finance Court) (Germany) of 2 March 2005, received
at the Court Registry on 15 March 2005, for a preliminary
ruling in the proceedings between Heinrich Schulze GmbH &
Co. KG i.L represented by the liquidator, Ravensberger Honig
GmbH and Hauptzollamt Hamburg-Jonas, on the following
questions:

Can the documentary evidence provided for in the third sub-
paragraph of Article 7(1) of Commission Regulation (EC) No
1222/94 (1) of 30 May 1994 be disregarded and the exporter
permitted to adduce evidence as to the products actually used
in the manufacture of the exported goods by means of other
types of evidence if the exporter cannot (is no longer able to)
adduce the documents relating to production by reason of
force majeure?

Does the incidence of force majeure also lead to a reduction in
the standard of proof in the sense that the exporter merely has
to produce prima facie evidence of or plausibly demonstrate
the products actually used in the manufacture of the exported
goods?

(1) OJ L 136, p. 5.

Appeal brought on 15 March 2005 (fax: 11 March 2005)
by the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) against the judgment delivered
on 12 January 2005 by the Court of First Instance (Third
Chamber) in Case T-334/03 between Deutsche Post Euro
Express GmbH and the Office for Harmonisation in the
Internal Market.

(Case C-121/05 P)

(2005/C 143/24)

(Language of the case: German)

An appeal against the judgment delivered on 12 January 2005
by the Court of First Instance of the European Communities
in Case T-334/03 between Deutsche Post
(Third Chamber)
Euro Express GmbH and the Office for Harmonisation in the
Internal Market was brought before the Court of Justice of the
European Communities on 15 March 2005 (fax: 11 March
2005) by the Office for Harmonisation in the Internal Market,
represented by A. von Mühlendahl, Vice-President of the Office,
and G. Schneider, member of the litigation department in the
field of intellectual property.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance (Third
Chamber) of 12 January 2005 in Case T-334/03 (1) and
dismiss the application;

2. refer the case back to the Court of First Instance.

11.6.2005

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Official Journal of the European Union

C 143/17

Pleas in law and main arguments

For the reasons set out above, the contested decision is thus
based on an infringement of Article 7(1)(c) of Regulation No
40/94 and must therefore be set aside.

The Office for Harmonisation in the Internal Market (Trade
Marks and Designs) submits the following grounds of appeal
against the above-mentioned judgment:

(1) OJ C 69, 19.03.2005, p. 14.

As a result of the considerations set out in paragraphs 35 and
36 of the judgment under appeal, the Court of First Instance
infringed Article 7(1)(c) of Regulation No 40/94, in so far as it
deemed the designation ‘EURO’ to be an indication of the
geographical origin of the goods or services, but at the same
time ruled that it could only be excluded from registration as a
Community trade mark if the geographical origin which is
designated by the mark is an ‘essential’ characteristic for the
relevant public. This contradicts the clear wording of
that
article, which excludes from registration indications designating
geographical origin without any further qualification. It also
follows from Case C-363/99 Koninklijke KPN Nederland NV v
Benelux-Merkenbureau [2004] ECR II-0000 that all signs or indi-
cations which describe the characteristics of goods or services
applied for are to be excluded from registration, irrespective of
whether those characteristics are ‘essential’.

Reference for a preliminary ruling from the Østre Land-
sret by order of that court of 15 March 2005 in VW-Audi
Forhandlerforeningen, acting for Vulcan Silkeborg A/S v
Skandinavisk Motor Co. A/S

(Case C-125/05)

(2005/C 143/25)

(Language of the case: Danish)

the Court of First

the judgment under appeal,

As a result of the considerations set out in paragraphs 36 to 43
Instance
of
infringed Article 7(1)(c) of Regulation No 40/94, in so far as it
deemed the designation ‘PREMIUM’
to be an indication of
quality, but at the same time refused to apply that provision to
that designation. Article 7(1)(c) of Regulation No 40/94
excludes from registration indications of value without any
further qualification, since every competitor of the applicant
should be entitled to use indications of value without being
adversely affected by trademark rights of third parties to such
indications. The Court of First Instance's argument (paragraph
39) that designations such as ‘PREMIUM’ fall to be assessed
(only) under Article 7(1)(b) of Regulation No 40/94 is mistaken
in this case. Since the designation ‘PREMIUM’ already falls
within Article 7(1)(c) of Regulation No 40/94 as an indication
of quality, there is no need to have further recourse to Article
7(1)(b) of the Regulation.

is established that

According to the principles laid down in judgments of the
Court of Justice, which are referred to in paragraph 44 of the
judgment under appeal, descriptive elements of a compound
trade mark are also descriptive when considered as a whole,
unless it
the overall designation, when
considered as a whole, has a meaning other than that of its
individual components. It is obvious in this case that the desig-
nation ‘EUROPREMIUM’ — a combination of the two elements
‘EURO’ and ‘PREMIUM’ which is formed according to the rules
of common language usage — does not indicate anything in
this connection other than that the goods and services applied
for are of European origin and of particular quality.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Østre Landsret (Denmark)
of 15 March 2005, received at the Court Registry on 17 March
2005, for a preliminary ruling in the proceedings between VW-
Audi Forhandlerforeningen, acting for Vulcan Silkeborg A/S
and Skandinavisk Motor Co. A/S on the following questions:

1. Is Article 5(3) of Commission Regulation (EC) No
1475/95 (1) of 28 June 1995 on the application of Article
85(3) of the Treaty to certain categories of motor vehicle
distribution and servicing agreements (‘Group Exemption
Regulation No 1475/95’) to be interpreted as meaning that
reasons must be stated for a supplier's termination of an
agreement with a dealer on one year's notice which go
beyond the supplier's reference to that provision?

2. If Question 1 is answered in the affirmative:

What requirement may be placed under Community law
on the content of such a statement of reasons and when
must such a statement be provided?

3. What is the consequence of not providing a proper or

timely statement of reasons?