Case C-239/06: Action brought on  29 May 2006  — Commission of the European Communities v Italian Republic
Date: 2006-07-29
Institutions: Court of Justice
Subjects: CCT duties, European Commission, Italy, action for failure to fulfil an obligation, customs regulations, military equipment, own resources

C 178/24

EN

Official Journal of the European Union

29.7.2006

(2) Misapplication of Article 43(2) and (3) of Regulation No
40/94 as the Court did not take into consideration the
applicant's word mark No 642952 THE BRIDGE;

— as regards the word mark THE BRIDGE, the applicant
has provided sufficient proof of use to establish the
serious and effective use of the trade mark in question
within the meaning of Rule 22(2) of Regulation (EC)
No 2868/95;

— the Court misapplied Article 43(2) and (3) of Regulation
No 40/94 in so far as it did not consider the suitability
of the documents provided by the applicant to prove
the use of its trade mark but limited itself to stating
that the Board of Appeal was correct to not take such a
trade mark into consideration as the applicant did not
provide proof of continuous use thereof for all of the
five reference years, which is not a legal requirement.

(3) Misapplication of Articles 15(2)(a) and 43(2) and (3) of
Regulation No 40/94 in that the Court did not take into
consideration the applicant's figurative mark No 370836
BRIDGE;

— the Court, while recognising the fact that the applicant
is the proprietor of a ‘family’ of marks in a series
turning on the sign ‘Bridge’ was in principle relevant for
the purpose of evaluation of the existence of a risk of
confusion, in the specific case, omitted to take those
trade marks into consideration because they are regis-
tered but not used, when in fact the use of those trade
marks is not relevant to the fact that they must be
considered as a ‘series’.

Action brought on 29 May 2006 — Commission of the
European Communities v Italian Republic

(Case C-239/06)

(2006/C 178/38)

Language of the case: Italian

— the proof of use produced by the applicant to demon-
strate the effective use of the trade mark THE BRIDGE
should have been considered sufficient to also demon-
strate the use of the trade mark BRIDGE;

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Wilms, C. Cattabriga, L. Visaggio, agents)

— in any case, the applicant's figurative mark BRIDGE is
to be considered as a ‘defensive’ trade mark for the
purposes of the Italian law on trade marks and, as such,
is exempt from proof of use;

Defendant: Italian Republic

— the Court erred in accepting the argument put forward
for the first time by the OHIM (making it in any case
inadmissible) that the concept of defensive trade mark
is incompatible with the system of protection of the
Community trade mark. In fact, several arguments mili-
tate in favour of the compatibility of the ‘defensive’
trade mark with the Community system.

(4) Misapplication of Article 8(1)(b) of Regulation No 40/94 in
that the fact that the applicant is the proprietor of several
trade marks all turning on the word ‘bridge’ (marks in a
series) increases the risk of confusion between those trade
marks taken as a whole and the trade mark BAINBRIDGE;

Form of order sought

— Declare that the Italian Republic, by refusing to calculate
and pay the own resources which were improperly not
collected as a result of the exemption from import duties
unilaterally applied to material used for military purposes
and the default interest due by reason of the failure to make
those own resources available to the Commission in good
time, the Italian Republic has failed to fulfil its obligations
under Articles 2, 9, 10 and 11 of Regulation (EEC,
Euratom) No 1552/89 and the corresponding provisions of
Regulation (EC, Euratom) No 1150/2000.

— Order the Italian Republic to pay the costs.

29.7.2006

EN

Official Journal of the European Union

C 178/25

Pleas in law and main arguments

In the view of the Commission, the exemption from customs
duties unilaterally granted by Italy during the period preceding
the application of Council Regulation (EC) No 150/2003 (1)
amounted to an unlawful derogation from Article 26 EC and
from Community customs legislation, resulting in an unjustifi-
able reduction in customs revenue, which constitutes the
Community's own resources. Despite the applicant's repeated
requests, the Italian Government has refused to calculate and
pay to the Community the amounts corresponding to the own
resources consequently evaded during the period between 1
January 1998 and 31 December 2002, and to pay default
interest on the said amounts, as laid down by the legislation in
force in this area.

(1) OJ L 25, p. 1.

Reference for a preliminary ruling from the Landgericht
Koblenz (Germany) lodged on 31 May 2006 — Dynamic
Medien Vertriebs GmbH v Avides Media AG

(Case C-244/06)

(2006/C 178/40)

Language of the case: German

Referring court

Landgericht Koblenz

Parties to the main proceedings

Applicant: Dynamic Medien Vertriebs GmbH

Reference for a preliminary ruling from the Korkein
lodged on 29 May 2006 —
hallinto-oikeus (Finland)

Fortum Project Finance SA

Defendant: Avides Media AG

(Case C-240/06)

(2006/C 178/39)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Fortum Project Finance SA

Question referred

Are Article 56 EC and Article 12(1)(c) of Council Directive
69/335/EEC (1) of 17 July 1969 concerning indirect taxes on
the raising of capital to be interpreted as precluding the char-
ging of
tax where securities are transferred, as
described above, as a contribution to a share company which
gives new shares of its own in return?

transfer

Question referred

Does the principle of the free movement of goods within the
meaning of Article 28 EC preclude a provision of German law
prohibiting the sale by mail order of image storage media
(DVDs, videos) that are not labelled as having been examined
in Germany as to their availability to young persons?

In particular:

Does the prohibition of mail order sales of such image storage
media constitute a measure having equivalent effect within the
meaning of Article 28 EC?

If so:

Is such a prohibition justified under Article 30 EC, having
regard to Directive 2000/31/EC, (1) even if the image storage
medium has been examined as to its availability to young
persons by another Member State of the EU and is labelled
accordingly, or does such a check by another Member State of
the EU constitute a less severe means for the purposes of that
provision?

(1) OJ, English Special Edition 1969 (II), p. 412.

(1) OJ L 178, p. 1.