Case C-144/07 P: Appeal brought on 13 March 2007 by K-Swiss, Inc. against the order of the Court of First Instance (Third Chamber) delivered on 14 December 2006 in Case T-14/06: K-Swiss, Inc. v Office for Harmonisation in the Internal Market (Trade Mark and Designs) (OHIM)
Date: 2007-05-26
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, administrative formalities, appeal, clothing industry, trade-mark law

C 117/16

EN

Official Journal of the European Union

26.5.2007

According to the case-law of the Court, national provisions
restricting or prohibiting certain selling arrangements do not
fall under Article 28 EC provided that two requirements are
met: first, the provisions concerned must apply to all affected
traders operating within the national territory and, second, they
should affect the marketing of domestic products and those
from other Member States in the same manner, in law and in
fact.
In this case only the first condition is however met,
whereas domestic and foreign products are not affected in the
same manner, in law and in fact, by the legislative requirement
that all duties under the contract be met by a single supplier.
This rule impedes access to the market more for foreign goods
than for domestic products.
is immaterial
according to the case-law of the Court that domestic pharmacies
which are not situated in the vicinity of the hospital are also
confronted by the same problems. A national provision which
does not favour all domestic products and which also adversely
affects domestic and not only foreign products is still capable of
being regarded as a restriction on trade between Member States.

In that regard it

Restrictions on intra-Community trade may be justified on over-
riding grounds of public interest, in particular relating to public
security or public health requirements. The national rules in
question should be suitable, necessary and proportionate. There
is no requirement on grounds of public health for the bundling
mandated by national
the contractual duties
legislation of
referred to. It should on the contrary be possible for a pharmacy
situated at some greater distance from the hospital which is to
be supplied and also in another Member State to supply it with
medicinal products on a regular basis.

a

for

Reference
from the
preliminary
Finanzgericht Hamburg (Germany) lodged on 13 March
2007 — Firma A.O.B. Reuter & Co. v Hauptzollamt
Hamburg-Jonas

ruling

Question referred

Is solely false information supplied by an exporter in its export
declaration liable to sanction under Article 11(1) of Regulation
(EEC) No 3665/87 (1) or is the failure to comply with the mate-
rial requirements for claiming a refund alone the subject of
sanctions?

(1) OJ L 351, p. 1.

Appeal brought on 13 March 2007 by K-Swiss, Inc. against
the order of the Court of First Instance (Third Chamber)
delivered on 14 December 2006 in Case T-14/06: K-Swiss,
Inc. v Office for Harmonisation in the Internal Market
(Trade Mark and Designs) (OHIM)

(Case C-144/07 P)

(2007/C 117/26)

Language of the case: English

Parties

Appellant: K-Swiss, Inc. (represented by: H.E. Hübner, Advocate)

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

(Case C-143/07)

(2007/C 117/25)

Form of order sought

The applicant claims that the Court should:

— set aside the order of the Court of First Instance;

Language of the case: German

— order the Office for Harmonisation in the Internal Market

(Trade Marks end Designs) (OHIM) to pay the costs.

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Firma A.O.B. Reuter & Co.

Defendant: Hauptzollamt Hamburg-Jonas

Pleas in law and main arguments

The appellant submits that in declaring its action out of time
the Court of First Instance violated Rules 61, 62 and 68 of
Commission regulation (EC) No 2868/95, of 13 December
1995, implementing Council regulation (EC) No 40/94 on the
Community trade mark (1).

(1) OJ 1995 L 303, p. 1.