Case C-301/05 P: Appeal brought on 28 July 2005 (Fax: 27 July 2005) by Hans-Peter Wilfer against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2005-11-12
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, trade-mark law

C 281/4

EN

Official Journal of the European Union

12.11.2005

Terminals NV and Belgische Staat, United Antwerp Maritime
Agencies NV — the Court (First Chamber) composed of P.
Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodri-
gues (Rapporteur), E. Juhász and M. Ilešič, Judges; D. Ruiz-
Jarabo Colomer, Advocate General, M. Ferreira, Principal
administrator,
for the, Registrar, gave a judgment on 15
September 2005, the operative part of which is as follows:

The fourth indent of Article 203(3) of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs
Code must be interpreted as meaning that ‘the person required to fulfil
the obligations arising from temporary storage of the goods’ is the
person who holds the goods after they have been unloaded in order to
move or store them.

(1) OJ C 106 of 30.04.2004.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 8 September 2005

in Case C-303/04 (reference for a preliminary ruling from
the Tribunale di Voghera): Lidl Italia Srl v Comune di Stra-
della (1)

(Technical standards and regulations — Directive 98/34/EC
— Concept of ‘technical regulation’ — Non-biodegradable
cotton buds)

(2005/C 281/08)

(Language of the case: Italian)

93 of 23 March 2001 on the environment constitutes a technical
regulation to the extent to which it includes a prohibition on the
marketing of cotton buds which are not manufactured from biode-
gradable materials in accordance with a national standard.

2. The first subparagraph of Article 8(1) of Directive 98/34, as
amended by Directive 98/48, must be interpreted as meaning that
a national provision which constitutes a technical regulation, such
as Article 19 of Law No 93 of 23 March 2001, must be notified
to the Commission of the European Communities prior to its
adoption.

3. The first subparagraph of Article 8(1) of Directive 98/34, as
amended by Directive 98/48, must be interpreted as meaning that
the national courts may refuse to apply a national legal provision
constituting a technical regulation, such as Article 19 of Law No
93/2001 of 23 March 2001, if it has not been notified to the
Commission of the European Communities prior to its adoption.

(1) OJ C 228 of 11.09.2004.

Appeal brought on 28 July 2005 (Fax: 27 July 2005) by
Hans-Peter Wilfer against the judgment delivered on 8
June 2005 by the Fourth Chamber of the Court of First
Instance of the European Communities in Case T-315/03
Hans-Peter Wilfer v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case C-301/05 P)

(2005/C 281/09)

(Language of the case: German)

In Case C-303/04: reference for a preliminary ruling under
Article 234 EC from the Tribunale di Voghera (District Court
of Voghera) (Italy), made by decision of 1 July 2004, received
at the Court on 16 July 2004, in the proceedings between Lidl
Italia Srl and Comune di Stradella — the Court
(Fifth
Chamber), composed of R. Silva de Lapuerta, President of the
Chamber, C. Gulmann (Rapporteur) and J. Klučka, Judges; J.
Kokott, Advocate General; R. Grass, Registrar, gave a judgment
on 8 September 2005,
the operative part of which is as
follows:

1. Article 1(11) of Directive 98/34/EC of the European Parliament
and of the Council of 22 June 1998 laying down a procedure for
the provision of information in the field of technical standards and
rules on Information Society services, as
regulations and of
amended by Directive 98/48/EC of the European Parliament and
of the Council of 20 July 1998, must be interpreted as meaning
that a national legislative provision such as Article 19 of Law No

An appeal against the judgment delivered on 8 June 2005 by
the Fourth Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-315/03 between Hans-Peter Wilfer
and Office for Harmonisation in the Internal Market (Trade Marks
and Designs)(OHIM) was brought before the Court of Justice of
the European Communities on 28 July 2005 by Hans-Peter
Wilfer,
lawyer, of Kanzlei
Meissner, Bolte & Partner, Widenmayerstraße 48, D-80538
Munich, Germany.

represented by A. Kockläuner,

The appellant claims that the Court should:

1. set aside, in its entirety, paragraph 1 of the operative part of
the judgment of the Court of First Instance of 8 June 2005
in Case T-315/03 (1) under appeal, and set aside paragraphs
2 and 3 of the operative part, in so far as to order OHIM to
pay all of its own costs and those incurred by the applicant;

12.11.2005

EN

Official Journal of the European Union

C 281/5

2. order OHIM to pay the remainder of

the costs of

the

proceedings.

teristics and characteristics which are not
obvious to the relevant public.

immediately

Grounds of appeal and main arguments

(1) OJ 2005 C 193, p. 26.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark.

In his appeal against the abovementioned judgment, the appel-
lant relies on pleas of procedural irregularities and an infringe-
ment of Community law by the Court of First Instance:

1. As regards the question whether, or to what extent, the
appellant can be represented and assisted by a patent agent,
the Court misinterpreted Article 19 of the Rules of Proce-
dure of the Court of First Instance. Under that provision, the
term ‘lawyer’ also covers patent agents provided that their
legal system authorises them to represent parties before a
court and provided that their national
legal order grants
them a status within their legal system which, in terms of
the rights and responsibilities
is
comparable to that of a lawyer.

transferred to them,

2. In assessing the questions whether, or to what extent, the
attestation concerning the registration of US trade mark
76/302,601 ‘ROCKBASS’ and the new arguments and
evidence contained in the appellant's written statement were
to be considered in the present proceedings, the Court not
only misjudged the scope of the principle of examination of
the facts by the Office of its own motion in Article 74 of
the Community Trade Mark Regulation (2), but also misap-
plied the provisions laid down in Article 7(1)(b) and (c)
thereof.

3. As regards the meaning and grammatical structure of the
sign ‘ROCKBASS’, the Court misrepresented or falsified the
facts submitted. The Court overlooked the fact that the sign
‘ROCKBASS’ is extremely complex and did not consider that
many different grammatical combinations are possible for
that mark. Since the Court did not give any reasons for
those misrepresentations it also breached its duty to give
reasons.

4. The Court misrepresented or falsified the facts submitted as
regards the possibility of using the goods in Classes 9 and
18 independently of the goods claimed in Class 15 and,
since it did not provide any coherent reasons for doing so,
it thereby also breached its duty to give reasons.

5. As regards the question whether the registered trade mark
‘ROCKBASS’ is directly descriptive of all the goods claimed,
the Court misapplied Article 7(1)(c) of
the Community
Trade Mark Regulation. In so doing, it erroneously based its
findings on the point of view of the average observer with
certain preconceptions instead of the point of view of the
average observer with no preconceptions and, in assessing
the question, it took into account only insignificant charac-

Reference for a preliminary ruling from the Wojewódzki
Sąd Administracyny w Warszawie by order of that court
of 22 June 2005 in Maciej Brzeziński v Dyrektor Izby
Celnej w Warszawie

(Case C-313/05)

(2005/C 281/10)

(Language of the case: Polish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Wojewódzki Sąd Adminis-
tracyny w Warszawie (Regional Administrative Court, Warsaw),
Poland of 22 June 2005, received at the Court Registry on 9
August 2005,
for a preliminary ruling in the proceedings
between Maciej Brzeziński and Dyrektor Izby Celnej w Wars-
zawie (Director of the Customs Chamber in Warsaw) on the
following questions:

1. Does Article 25 of the Treaty establishing the European
Community, which prohibits customs duties on imports and
exports and charges having equivalent effect between
Member States, prohibit a Member State from applying
Article 80 of the Ustawa o Podatku Akcyzowym (Polish
Law on Excise Duty) of 23 January 2004 (Dziennik Ustaw
(Official Journal of the Republic of Poland) No 29, heading
257, as amended) where excise duty is charged on the
purchase of any car, irrespective of its place of origin prior
to its initial registration in Poland?

that

2. Does the first paragraph of Article 90 of the Treaty estab-
lishing the European Community, under which no Member
State may impose, directly or indirectly, on the products of
other Member States any internal taxation of any kind in
excess of
imposed directly or indirectly on similar
domestic products, allow a Member State to impose excise
duty on second-hand cars imported from other Member
States without charging such duty on the sale of second-
hand cars already registered in Poland, where the excise
duty has been imposed, under Article 80 of the Polish Law
on Excise Duty, on all cars not registered in Poland?