Case C-24/05 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 — Three-dimensional mark — Three-dimensional shape of a light-brown sweet — 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

C 212/6

EN

Official Journal of the European Union

2.9.2006

Parties to the main proceedings

Applicant: Heintz van Landewijck SARL

Defendant: Staatssecretaris van Financiën

tible with Sixth Directive 77/388 and, in particular, with Article
27(1) and (5) thereof.

(1) OJ C 45, 19.02.2005.

Re:

Reference for a preliminary ruling — Hoge Raad der Neder-
landen — Interpretation of Article 27(1) and (5) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
assessment (OJ 1977 L 145, p. 1), as amended by Ninth Direc-
tive 78/583/EEC (OJ 1978 L 194, p. 16) — Interpretation of
Council Directive 92/12/EEC of 25 February 1992 on the
general arrangements for products subject to excise duty and
on the holding, movement and monitoring of such products
(OJ 1992 L 76, p. 1) — Compatibility of national law with
Community law — Tax labels for tobacco products — Disap-
pearance before use

Operative part of the judgment

The Court:

1. Neither Council Directive 92/12/EEC of 25 February 1992 on
the general arrangements for products subject to excise duty and
on the holding, movement and monitoring of such products nor
the principle of proportionality preclude Member States from
adopting legislation which does not provide for reimbursement of
the amount of excise duty paid, where the excise stamps disap-
peared before having been affixed to the tobacco products, if that
disappearance is not attributable to force majeure or to an accident
and if it is not established that the stamps have been destroyed or
rendered permanently unusable, which thereby places the financial
responsibility for the loss of tax stamps on the purchaser.

2. Article 27(5) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added tax:
uniform basis of assessment must be interpreted as meaning that
failure to observe the period for notification does not constitute a
material procedural defect capable of rendering inapplicable a dero-
gating measure which was notified late.

3. Article 27(1) and (5) of Sixth Directive 77/388 must be inter-
preted as meaning that a derogating scheme for collecting VAT by
means of tax stamps, such as that established by Article 28 of the
Law on turnover tax of 28 June 1968 (Wet op de omzetbe-
lasting),
is compatible with the requirements laid down by the
provisions of the directive and does not exceed what is necessary
for the simplification of the procedure for charging the tax.

4. The absence of an obligation to reimburse amounts paid for the
purchase of excise stamps which correspond to VAT, where those
stamps disappeared before having been affixed to the tobacco
products, if that disappearance is not attributable to force majeure
or to an accident and if it is not established that the stamps have
been destroyed or rendered permanently unusable, is not incompa-

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)

(Case C-24/05 P) (1)

(Appeal — Community trade mark — Article 7(1)(b) and (3)
of Regulation (EC) No 40/94 — Absolute ground for refusal
to register — Three-dimensional mark — Three-dimensional
shape of a light-brown sweet — Distinctive character)

(2006/C 212/10)

Language of the case: German

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-396/02
Storck v OHIM, whereby the Court of First Instance dismissed
the action for annulment of the refusal to register a three-
dimensional trade mark consisting of the shape of a light-
brown sweet 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;

2. Orders August Storck KG to pay the costs.

(1) OJ C 69, 19.03.2005.