Case C-304/06 P: Appeal brought on 13 July 2006 by Eurohypo AG against the judgment delivered on 3 May 2006 in Case T-439/04 Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2006-09-16
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), bank, financial institution, trade-mark law

C 224/22

EN

Official Journal of the European Union

16.9.2006

‘anti-trust’

to assess at

2. Does it fall to the national authority responsible for the
rules, when determining the
application of
person to be penalised,
its own discretion
whether circumstances exist which warrant the attribution
to the economic successor of responsibility for contraven-
tions of
the competition rules committed by the legal
person which it has succeeded, even when that latter has
not ceased to exist at the date of the decision, so that the
effectiveness of the competition rules is not compromised
by alterations made to the legal form of the undertakings?

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 28 June 2006 — Hans-
Dieter and Hedwig Jundt v Finanzamt Offenburg

in the light of

lawful
continue to have responsibility in that regard?

the fact

that

the Member States

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy) lodged on 3
July 2006 — Telecom Italia SpA v Ministero dell'Economia
e delle Finanze, Ministero delle Comunicazioni

(Case C-296/06)

(2006/C 224/42)

Language of the case: Italian

(Case C-281/06)

(2006/C 224/41)

Referring court

Tribunale Amministrativo Regionale del Lazio

Language of the case: German

Parties to the main proceedings

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Hans-Dieter and Hedwig Jundt

Applicant: Telecom Italia SpA

Defendants: Ministero dell'Economia e delle Finanze, Ministero
delle Comunicazioni

Question referred

Is Article 20(3) of Law No 448/1998 in conjunction with
Article 4(9) of Law No 249/1997 compatible with Articles 11,
22 and 25 of Directive 97/13/EC? (1)

Defendant: Finanzamt Offenburg

(1) OJ 1997 L 117, p. 15.

Questions referred

1. Is Article 59 of the EC Treaty (now Article 49 EC) to be
interpreted as including within its scope also spare-time
teaching activity for or on behalf of a public law legal
person (a university) where only an expense allowance is
paid for that activity, as being an activity in a quasi-
honorary capacity?

2. If the first question is answered in the affirmative,

is the
restriction on freedom to provide services whereby allow-
ances are taxed favourably only if they are paid by national
public law legal persons (here, Paragraph 3(26) of
the
Einkommensteuergesetz (Income Tax Law)) justified by the
fact that the State tax concession applies only where the
activity is for the benefit of a national public law legal
person?

3. If the second question is answered in the negative, is Article
126 of the EC Treaty (now Article 149 EC) to be interpreted
as meaning that a provision of tax law designed to help
supplement the organisation of the education system (such
as Paragraph 3(26) of the Einkommensteuergesetz, here) is

Appeal brought on 13 July 2006 by Eurohypo AG against
the judgment delivered on 3 May 2006 in Case T-439/04
Eurohypo AG v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

(Case C-304/06 P)

(2006/C 224/43)

Language of the case: German

Parties

Appellant: Eurohypo AG (represented by C. Rohnke and M.
Kloth, Rechtsanwälte)

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

16.9.2006

EN

Official Journal of the European Union

C 224/23

Form of order sought

— set aside the judgment of the Court of First Instance of 3

May 2006 in Case T-439/04;

— annul Decision R 829/2002-4 of the Board of Appeal of 6

August 2004;

— order the respondent to pay the costs.

The judgment of the Court of First Instance was also based on
the use of a criterion according to which a mark made up of
descriptive components may be capable of registration if the
linguistic use and has
compound word has entered general
it then being necessary to
acquired a meaning of its own,
examine whether that word is not
itself descriptive. That
criterion is relevant in the context of Article 7(1)(c) of Regu-
lation No 40/94 for the question of a possible need to leave
the mark free, but it is not the criterion that applies to the
interpretation of Article 7(1)(b) on ascertaining distinctive char-
acter. By the use of that criterion, relevant in the context of
Article 7(1)(c) of Regulation No 40/94, as a basis of its decision
to dismiss the action, the Court of First Instance erred in law in
its interpretation of Article 7(1)(b) of Regulation No 40/94.

Pleas in law and main arguments

The appellant argues as follows in support of its appeal against
the above judgment of the Court of First Instance:

The Court of First Instance misinterpreted the requirements of
the Office's duty to examine of its own motion under the first
sentence of Article 74(1) of Regulation No 40/94. According to
the case-law, the examination by the competent authority for
trade marks must be stringent and full, in order to prevent, for
reasons of legal certainty and good administration, both unjus-
tified registrations of marks and unjustified objections to marks
eligible for registration. The Office's examination must be thor-
ough enough for the Office to be able to ascertain with
certainty, on the basis of that examination, whether there are
grounds for refusing registration under Article 7 of Regulation
No 40/94. However, neither the judgment nor the preceding
decisions of the respondent contained findings of fact as to the
allegedly descriptive character of
the
findings were confined to possible descriptive meanings of the
individual components ‘EURO’ and ‘HYPO’. No other findings
of fact were made on the descriptive character of the designa-
tion ‘EUROHYPO’ as a whole.

‘EUROHYPO’.

Instead,

The Court of First Instance misinterpreted the requirement of
distinctive character under Article 7(1)(b) of Regulation No
40/94 and wrongly refused to register the mark applied for. In
the case of a mark composed of words, possible distinctive
character can indeed be examined partially for each concept or
component separately, but must in every case depend on an
examination of the totality they form. Even if it is the case that
none of the components has distinctive character on its own,
that does not exclude the possibility that the combination of
them may have distinctive character.
In the present case,
however, the respondent confined itself, in the contested appeal
decision, to finding that the components ‘EURO’ and ‘HYPO’
were descriptive and the overall concept did not convey an
its parts,
impression that went beyond the sum of
overall
without explaining why the compound word EUROHYPO as a
whole could not distinguish the services of the appellant from
those of other undertakings.

Action brought on 13 July 2006 — Commission of the
European Communities v Hellenic Republic

(Case C-305/06)

(2006/C 224/44)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and K. Simonsson, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

The applicant asks the Court to:

— declare that, by preventing a haulier from using the nearest
suitable rail unloading station in order to complete, in the
context of combined transport operations between Member
States, the final road haulage legs forming an integral part
of combined transport operations, the Hellenic Republic
has failed to fulfil its obligations under Articles 2 and 4 of
Council Directive 92/106/EEC (1) on the establishment of
common rules for certain types of combined transport of
goods between Member States;

— order the Hellenic Republic to pay the costs.