Case C-108/05: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Gerechtshof te 's Gravenhage, Netherlands) — Bovemij Verzekeringen NV v Benelux-Merkenbureau (Trade Marks — Directive 89/104/EEC — Article 3(3) — Distinctive character — Acquisition through use — Taking into account all or a substantial part of the Benelux territory — Taking into account the linguistic regions of Benelux — Word mark EUROPOLIS)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: Benelux, interpretation of the law, trade-mark law

C 294/12

EN

Official Journal of the European Union

2.12.2006

Judgment of the Court (First Chamber) of 7 September
2006 (reference for a preliminary ruling from the Gerecht-
shof te 's Gravenhage, Netherlands) — Bovemij Verzeker-
ingen NV v Benelux-Merkenbureau

product or service in question as originating from a particular
undertaking because of the trade mark.

(Case C-108/05) (1)

(1) OJ C 115, 14.5.2005.

(Trade Marks — Directive 89/104/EEC — Article 3(3) —
Distinctive character — Acquisition through use — Taking
into account all or a substantial part of the Benelux territory
— Taking into account the linguistic regions of Benelux —
Word mark EUROPOLIS)

(2006/C 294/19)

Language of the case: Dutch

Referring court

Gerechtshof te 's Gravenhage, Netherlands

Parties to the main proceedings

Applicant: Bovemij Verzekeringen NV

Judgment of the Court (Third Chamber) of 28 September
2006 — Commission of the European Communities v
Republic of Austria

(Case C-128/05) (1)

(Failure of a Member State to fulfil obligations — Sixth
VAT Directive — International transport undertakings estab-
lished in another Member State — Annual turnover in
Austria of EUR 22000 or less — Simplified procedures for
charging and collecting the VAT)

(2006/C 294/20)

Language of the case: German

Defendant: Benelux-Merkenbureau

Parties

Re:

Reference for a preliminary ruling — Gerechtshof te 's-Grave-
nhage — Interpretation of Article 3(3) of Council Directive
89/104/EEC, of 21 December 1988, approximating the laws of
the Member States relating to trade marks (OJ 1988 L 40, p. 1)
— Assessment of the distinctive character of a mark — Use of
the mark — Reputation of the mark throughout the Benelux
territory or in a considerable part of it (e.g. the Netherlands) —
Linguistic regions taken into account

Operative part of the judgment

1. Article 3(3) of First Council Directive 89/104/EEC of 21
December 1988 to approximate the laws of the Member States
relating to trade marks must be interpreted as meaning that the
registration of a trade mark can be allowed on the basis of that
provision only if it is proven that that trade mark has acquired
distinctive character through use throughout the territory of the
Member State or, in the case of Benelux, throughout the part of
the territory of Benelux in which there exists a ground for refusal.

2. As regards a mark consisting of one or more words of an official
language of a Member State or of Benelux,
if the ground for
refusal exists only in one of the linguistic areas of the Member
State or, in the case of Benelux, in one of its linguistic areas, it
must be established that the mark has acquired distinctive char-
acter through use throughout that linguistic area. In the linguistic
area thus defined, it must be assessed whether the relevant class of
persons, or at least a significant proportion thereof, identifies the

Applicant: Commission of the European Communities (repre-
sented by: D. Triantafyllou, Agent)

Defendant: Republic of Austria (represented by: H. Dossi and M.
Fruhmann, Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 2, 6, 9(2)(b), 17, 18 and 22(3) to (5) of
Council Directive 77/388/EEC: Sixth Council Directive 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 (OJ 1977 L 145, p. 1)
for companies involved in international
— Specific rules
passenger transport established in another State and whose
annual turnover in Austria does not exceed EUR 22 000 —
No duty to submit periodic declarations and to pay the net
amount of VAT

Operative part of the judgment

The Court:

1. Declares that by allowing taxable persons not established in
Austria who transport passengers there not to submit tax return
forms and not to pay the net amount of VAT when their annual
turnover in Austria is below EUR 22 000, in that case deeming
the amount of VAT due to be equal to the amount of deductible
VAT and making application of the simplified rules contingent on