Case C-25/05 P: Judgment of the Court (First Chamber) of 22 June 2006 — August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Absolute ground for refusal to register — Figurative mark — Representation of a gold-coloured sweet wrapper — Distinctive character)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), appeal, confectionery product, trade-mark law

2.9.2006

EN

Official Journal of the European Union

C 212/7

Judgment of the Court (First Chamber) of 22 June 2006 —
August Storck KG v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

Judgment of the Court (Third Chamber) of 6 July 2006 —
Commission of the European Communities v Portuguese
Republic

(Case C-25/05 P) (1)

(Case C-53/05) (1)

(Appeal — Community trade mark — Article 7(1)(b) and (3)
of Regulation (EC) No 40/94 — Absolute ground for refusal
to register — Figurative mark — Representation of a gold-
coloured sweet wrapper — Distinctive character)

(Failure of a Member State to fulfil obligations — Directive
92/100/EEC — Copyright — Rental and lending right —
Failure to transpose within the prescribed period)

(2006/C 212/11)

Language of the case: German

(2006/C 212/12)

Language of the case: Portugese

Parties

Parties

Appellant: August Storck KG (represented by:
Wrage-Molkenthin and T. Reher, Lawyers)

I. Rohr, H.

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: G.
Schneider, Agent)

Re:

Appeal against the judgment of the Court of First Instance
(Fourth Chamber) of 10 November 2004 in Case T-402/02
Storck v OHIM, whereby the Court of First Instance dismissed
the action for annulment of the refusal to register a figurative
mark consisting of the representation of a sweet wrapper with
twisted ends for confectionery within Class 30 — Distinctive
character of a trade mark — Article 7(1)(b) of Council Regu-
lation (EC) No 40/94 of 20 December 1993 on the Community
trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

Applicant: Commission of the European Communities (repre-
sented by: P. Andrade and W.Wils, agents)

Defendant: Portugese Republic (represented by: L. Fernandes and
N. Gonçalves, agents)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 1 and 5 of Council Directive 92/100/EEC of 19
November 1992 on rental right and lending right and on
certain rights related to copyright in the field of intellectual
property (OJ 1992 L 346, p. 61)

Operative part of the judgment

The Court hereby:

1. Declares that, by exempting all categories of public lending estab-
lishments from the obligation to pay remuneration to authors for
public lending, the Portuguese Republic has failed to fulfil its obli-
gations under Articles 1 and 5 of Council Directive 92/100/EEC
of 19 November 1992 on rental right and lending right and on
certain rights related to copyright in the field of intellectual prop-
erty.

2. Orders August Storck KG to pay the costs.

2. Orders the Portugese Republic to pay the costs.

(1) OJ C 69, 19.03.2005.

(1) OJ C 82, 02.04.2005.