Case C-150/06 P: Appeal brought on  17 March 2006  by Arizona Chemical BV, Eastman Belgium BVBA, Cray Valley Iberica, SA against the judgment of the Court of First Instance (Third Chamber) delivered on  14 December 2005  in Case T-369/03: Arizona Chemical B.V, Eastman Belgium BVBA, Resinall Europe BVBA, Cray Valley Iberica S.A v Commission of the European Communities, supported by Finland
Date: 2006-05-20
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), appeal, chemical industry, dangerous substance, labelling

20.5.2006

EN

Official Journal of the European Union

C 121/7

the judgment of

Appeal brought on 20 March 2006 by Henkel KGaA
against
Instance
(Second Chamber) delivered on 17 January 2006 in Case
T-398/04 Henkel KGaA v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

the Court of First

(Case C-144/06 P)

(2006/C 121/12)

Language of the case: German

Parties

immediate conclusions as to the manufacturer based only on
the depiction of the specific,
individually shaped product. In
the market in question, it has become settled practice that the
individual form of the dishwasher and washing machine tablets
has a direct purpose as an indication of origin: each manufac-
turer uses different colourings to distinguish his product from
those of other manufacturers.

In testing distinctive character,
it must simply be verified
whether the sign claimed is suitable to distinguish the goods
for which the application is made as coming from a particular
company and thereby distinguishing these goods from those of
other companies. Individuality and originality are not necessary
and may not be used as the basis of a test. Since the appellant
has chosen several elements, namely the rectangular shape, the
layer structure as well as the insertion of an oval centre
combined with the free choice of three colours, it has provided
enough individual elements which show that the figurative
mark is sufficiently distinctive.

Appellant: Henkel KGaA (represented by: Dr C. Osterrieth,
Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(1) OJ 2006 C 74, p.18

Form of order sought

— Set aside the judgment of the Court of First Instance of the
European Communities of 17 January 2006 in Case T-398/
04 (1), notified on 23 January 2006 and annul the decision
of the Second Board of Appeal of OHIM of 4 August 2004
(Case R771/1999-2) concerning the Community trade
mark application No 000941971;

— order OHIM to pay the costs.

Pleas in law and main arguments

In its appeal, the appellant contends that there has been an
infringement of substantive law as a result of the assessment,
erroneous in law and in fact, of the requirement that the mark
applied for be distinctive.

the Court of First

In the judgment under appeal,
Instance
wrongly stated that the sign claimed — a three-coloured figura-
tive mark, which is an accurate depiction of a dishwasher and
washing machine tablet — is not sufficiently distinctive. This
view of the Court neither satisfies the previous criteria of the
case-law of the Court of Justice with regard to the requirements
which are to be met for a figurative mark to be distinctive, nor
did it take account of the actual circumstances on the relevant
market.

There is nothing to support the Court's ‘general experience’
that the products in question are acquired without care and
that the public will not be significantly influenced by the depic-
tion of the product. Contrary to this assumption by the Court,
the target public are completely accustomed to drawing

Appeal brought on 17 March 2006 by Arizona Chemical
BV, Eastman Belgium BVBA, Cray Valley Iberica, SA
against the judgment of the Court of First Instance (Third
Chamber) delivered on 14 December 2005 in Case T-369/
03: Arizona Chemical B.V, Eastman Belgium BVBA, Resi-
nall Europe BVBA, Cray Valley Iberica S.A v Commission
of the European Communities, supported by Finland

(Case C-150/06 P)

(2006/C 121/13)

Language of the case: English

Parties

Appellants: Arizona Chemical BV, Eastman Belgium BVBA, Cray
Valley Iberica, SA (represented by: K. Van Maldegem and C.
Mereu, avocats)

Other parties to the proceedings: Commission of the European
Communities, Finland, Resinall Europe BVBA

C 121/8

EN

Official Journal of the European Union

20.5.2006

Form of order sought

The applicants claim that the Court should:

— declare the present appeal admissible and well-founded;

— set aside the order of the Court of First Instance of 14

December 2005 in Case T-369/03;

— declare the Applicants' requests in Case T-369/03 admis-

sible;

— rule on the merits or, in the alternative, refer the case to

the Court of First Instance to rule on the merits; and

The applicants submit tha the CFI erred in law when it
considered that the applicants may challenge the contested
decision at national level.

5) Error in law in concluding that the applicants' action is

time-barred.

The applicants' submit that the action for damages is not
time-barred because the starting point for damages is, at the
earliest, the 1999 decision of the Commission not to declas-
sify, and, at the latest, the contested decision.

— order the Commission of the European Communities to

bear all costs and expenses of these proceedings.

Action brought on 23 March 2006 — Commission of the
European Communities v United Kingdom of Great
Britain and Northern Ireland

Pleas in law and main arguments

(Case C-155/06)

(2006/C 121/14)

The applicants submit that the judgements of the Court of First
Instance should be set aside for the following reasons:

Language of the case: English

1) Inconsistency in reasoning and misapplication of the legal
test for admissibility applicable to the addressee of a binding
act producing legal effects.

The applicants submit that the Court of First Instance (here-
inafter the CFI) erred in law where it did not base its assess-
ment on the fact that the contested decision is a binding act
producing legal effects bringing about a distinct change in
the applicants' legal position.

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and D. Lawunmi, Agents)

2) Misinterpretation of the regulatory framework applicable to
the applicants' data under directive

the assessment of
67/548/EEC.

Defendant: United Kingdom of Great Britain and Northern
Ireland

The applicants submit that the CFI erred in law where it
considered that the assessment of the applicants' data and
the Commission's final decision on the relevance of these
data as the basis for declassification is not an administrative
process that is subject to challenge.

3) Misinterpretation of the regulatory framework and of the

applicants' related rights under directive 67/548/EEC.

The applicants submit that te CFI erred in law when it
concluded that the applicants could not bring a challenge
on the grounds that the applicants were seeking to chal-
lenge a measure of general application.

4) Violation of the applicants' right to effective judicial protec-

tion.

Form of order sought

The applicant claims that the Court should:

— declare that,

the United Kingdom of Great Britain and
Northern Ireland, has failed to adopt all the final measures
necessary to fulfil its obligations under Article 53 of the
Council 96/29 (1) Euratom, laying down basic safety stan-
dards for the protection of the health of workers and the
general public against the dangers arising from ionising
radiation, because of the lack of provisions allowing for
appropriate intervention in all situations of lasting exposure
to ionising radiation resulting from the after effects of a
radiological emergency or a past practice;