Case C-238/06 P: Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, fruit juice, milk, milk product, trade-mark law, vegetable product

2.9.2006

EN

Official Journal of the European Union

C 212/9

Operative part of the judgment

The fact that specific goods are counted as a single supply, including
both a principal item which is by virtue of a Member State's legisla-
tion subject to an exemption with refund of the tax paid within the
meaning of Article 28(2)(a) of
the 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, as amended by Council
Directive 92/77/EEC of 19 October 1992 supplementing the
common system of
value added tax and amending Directive
77/388/EEC (approximation of VAT rates), and items which that
legislation excludes from the scope of that exemption, does not prevent
the Member State concerned from levying VAT at the standard rate
on the supply of those excluded items.

(1) OJ C 205, 20.08.2005.

Appeal brought on 29 May 2006 by Develey Holding
GmbH & Co. Beteiligungs KG against the judgment deliv-
ered by the Court of First Instance (Second Chamber) on
15 March 2006 in Case T-129/04 Develey Holding GmbH
& Co. Beteiligungs KG v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

(Case C-238/06 P)

(2006/C 212/15)

Language of the case: German

Parties

Appellant: Develey Holding GmbH & Co. Beteiligungs KG
(represented by: H. Kunz-Hallstein)

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

— Order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs for the first-
instance proceedings and the appeal.

Pleas in law and main arguments

The appellant substantiates its appeal against the abovemen-
tioned judgment of the Court of First Instance as follows:

1. In accordance with the theory relating to standards which is
now generally recognised and also acknowledged with
regard to proceedings before the Court, it corresponds to
the basic rules concerning burden of proof that a party
which is relying on a standard has to prove the factual
premises thereof. That applies in particular to reliance on
exceptions, which always have to be interpreted strictly
according to the case-law of the Court. As OHIM relied on
an exception in refusing protection it was thus obliged to
prove the existence of the facts constituting the exception.

2. In the present case there is not just an earlier national regis-
tration, but also an earlier national registration by a Member
State of both the EU and the Paris Convention for the
Protection of Industrial Property (PC) within the meaning of
Article 6 quinquies (A) PC which can only be denied protec-
tion under the rules relating to exceptions in Article 6 quin-
quies (B) PC. The special right in Article 6 quinquies (A)(1)
prevents the defendant from declaring that the application is
not capable of being protected at least as regards the terri-
tory of the Member State in which the identical union trade
mark enjoys protection. The defendant, however, based its
decision on a lack of distinctive character in the Community
and thus also in the territory of the Federal Republic of
Germany: to that extent the defendant is declaring a regis-
tration made by a State signatory to the Paris Convention to
be invalid. In this case it is not sufficient for OHIM to rely
'national', namely
completely on the independence of
German, legislation as the proprietor of a mark of a State
signatory to the Paris Convention may demand more than
treatment under domestic law. Rather, that assessment must
take place in the light of Article 6 quinquies (A) PC.

Form of order sought

— Annul the judgment of the Court of First Instance of 15

March 2006 in Case T-129/04 (1);

— Annul

the decision of

the Second Board of Appeal of

OHIM of 20 January 2004 (Case R367/2003-2);

— In the alternative, refer the case back to the Court of First

Instance;

3. As regards proof of lack of distinctive character, the Court
of First Instance stated that OHIM complied with its obliga-
tion at least in so far as it correctly referred to general
experience of life. The argument relating to general experi-
ence of life cannot, however, serve as a way of avoiding the
fact that there has been failure to prove the facts. The Court
of First Instance also wrongfully examined the issue of lack
of distinctive character solely on the basis of Article 7(1)(b)
of Regulation No 40/94 and completely disregarded Article
6 quinquies (B) PC.

C 212/10

EN

Official Journal of the European Union

2.9.2006

4. The Court of First Instance neither examined the distinctive
character on the basis of the goods in respect of which
registration of the mark was actually sought nor accurately
determined the overall impression of the marks. It also drew
no distinction between individual goods. The Court of First
Instance overlooked the fact that the use of design as an
indicator of origin also serves the needs of consumers: the
shape of the packaging provides them with their only possi-
bility of pre-selecting it in supermarkets where numerous
bottles with the same contents are lined up on a shelf.

(1) OJ C 108, p. 20

and a review of other irregularities in the award proce-
dure that — considered in isolation — would not be
time-barred would be permissible on the basis of the
contract price correctly determined or to be determined?

2. Should the details in a tender notice relevant to determin-
ation of the contract price be subject to any special require-
ments so as to enable the conclusion to be drawn from irre-
gularities relating to the estimated contract price that the
protection of primary law is generally precluded even if the
correctly estimated contract price exceeds
the relevant
threshold amount?

(1) OJ L 209, p. 1.

Reference for a preliminary ruling from the Hanseatisches
Oberlandesgericht (Germany) lodged on 30 May 2006 —
Lämmerzahl GmbH v Freie Hansestadt Bremen

(Case C-241/06)

(2006/C 212/16)

Language of the case: German

Referring court

Hanseatisches Oberlandesgericht

Reference for a preliminary ruling from the Raad van
State, (Netherlands) lodged on 29 May 2006 — Minister
voor Vreemdelingenzaken en Integratie and T. Sahin —
against the judgment of the Rechtbank 's-Gravenhage in
Case AWB 04/45792

(Case C-242/06)

(2006/C 212/17)

Language of the case: Dutch

Parties to the main proceedings

Referring court

Applicant: Lämmerzahl GmbH

Defendant: Freie Hansestadt Bremen

Question(s) referred

as

contracts,

1. Is it compatible with Council Directive 89/665/EEC of 21
December 1989 on the coordination of the laws, regulations
and administrative provisions relating to the application of
review procedures to the award of public supply and public
works
by Council Directive
amended
92/50/EEC of 18 June 1992 relating to the coordination of
procedures for the award of public service contracts (1), in
particular Article 1(1) and (3), for a tenderer to be generally
barred from gaining access to a review of a contracting
authority's decision to award public contracts because the
tenderer wrongfully failed to raise an irregularity in the
award procedure within the time-limit laid down for that
purpose in national law, where the irregularity relates

(a) to the form of invitation to tender selected

or

(b) to the correctness of the determination of the contract
price (the estimate is obviously wrong or the method of
determination is not sufficiently transparent)

Raad van State, Netherlands

Parties to the main proceedings

Appellants: Minister voor Vreemdelingenzaken en Integratie, T.
Sahin

Questions referred

1(a).

In the light of paragraphs 81 and 84 of the judgment in
Joined Cases C-317/01 and C-369/01 Abatay and Others
[2003] ECR I-12301, is Article 13 of Decision No 1/80
concerning the development of the Association to be
construed as meaning that an alien, a Turkish national,
who has complied with the rules for first admission and
residence in the country and from 14 December 2000 to
2 October 2002 was
legally employed by various
employers, but failed to request in due time the extension
of the period of validity of his residence permit, as a
result of which after the expiry of the permit and at the
time of the application for its extension, under national
law, he was neither legally resident nor entitled to work
in the country, can rely on that provision?