Case C-197/07 P: Appeal brought on 12 April 2007 by Aktieselskabet af 21. november 2001 against the judgment of the Court of First Instance (First Chamber) delivered on 6 February 2007 in Case T-477/04: Aktieselskabet af 21. November 2001 v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), TDK Kabushiki Kaisha (TDK Corp.)
Date: 2007-06-09
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, audiovisual equipment, clothing, trade-mark law

9.6.2007

EN

Official Journal of the European Union

C 129/11

Form of order sought

66/401/EEC,

— declare that by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2004/117/EC (1) of 22 December 2004 amending
Directives
2002/54/EC,
2002/55/EC and 2002/57/EC as
regards examinations
carried out under official supervision and equivalence of
seed produced in third countries, or by failing in any event
to communicate such provisions to the Commission, the
Italian Republic has failed to fulfil
its obligations under
Article 8 of that directive;

66/402/EEC,

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2004/117/EC
expired on 1 October 2005.

31 December 2007, local business tax reductions of up to
2 % of the net receipts of undertakings, granted by local
government for a limited period of time on the basis of
Articles 6 and 7 of Act C of 1990 on Local Taxes’, be inter-
preted as meaning that:

— Hungary has been granted a temporary derogation
which allows it to maintain local business tax, or that

— by granting the possibility to maintain local business tax
reductions, the Act of Accession also recognises that
Hungary has the (provisional) right to maintain a tax on
economic activities?

(2) Should Question 1 be answered in the negative, the refer-

ring court also asks the following question:

interpretation of Sixth Council Directive
On a correct
77/388/EEC (2), what are the criteria on which a tax may be
considered not to be characterised as a turnover tax for the
purposes of Article 33 of the Sixth Directive?

(1) OJ 2005 L 14, p. 18.

(1) OJ 2003 L 236, p. 846.
(2) OJ 1977 L 145, p. 1.

Reference for a preliminary ruling from the Zala Megyei
Bíróság lodged on 10 April 2007 — OTP Bank Rt. and
Merlin Gerin Zala Kft. v Zala Megyei Közigazgatási Hivatal

(Case C-195/07)

(2007/C 129/19)

Language of the case: Hungarian

Appeal brought on 12 April 2007 by Aktieselskabet af
21. november 2001 against the judgment of the Court of
First Instance (First Chamber) delivered on 6 February
2007 in Case T-477/04: Aktieselskabet af 21. November
2001 v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM), TDK Kabushiki Kaisha
(TDK Corp.)

Referring court

Zala Megyei Bíróság

Parties to the main proceedings

Applicants: OTP Bank Rt. and Merlin Gerin Zala Kft.

Defendant: Zala Megyei Közigazgatási Hivatal

Questions referred

1. Must point 3(a) of Chapter 4 of Annex X to the ‘Act of
Accession’ (1) (the Act concerning the conditions of acces-
sion of the Czech Republic, the Republic of Estonia, the
Republic of Cyprus, the Republic of Latvia, the Republic of
Lithuania, the Republic of Hungary, the Republic of Malta,
the Republic of Poland, the Republic of Slovenia and the
Slovak Republic and the adjustments to the Treaties on
which the European Union is founded), which is applicable
pursuant
the Act of Accession, which
‘Hungary may apply, up to and including
provides that

to Article 24 of

(Case C-197/07 P)

(2007/C 129/20)

Language of the case: English

Parties

Appellant: Aktieselskabet af 21. november 2001 (represented by:
C. Barrett Christiansen, advokat)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market
(Trade Marks and Designs), TDK Kabushiki
Kaisha (TDK Corp.)

Form of order sought

The appellant claims that the Court should:

— set aside in whole the decision of the Court of First Instance
dated 6 February 2007, case T-477/04 (the contested deci-
sion)

C 129/12

EN

Official Journal of the European Union

9.6.2007

— order the Office for Harmonization in the Internal Market
(OHIM) to pay the costs of the proceedings before the Court
of Justice.

9. based its decision of unfair advantage on reputation — not
repute — which does not comply with article 8(5) CTMR

— set aside the decision of the First Board of Appeal of the
Office for the Harmonization in the Internal Market dated
7 October 2004, case R-364/2003-1

— order the Office for Harmonization in the Internal Market
(OHIM) to pay the costs of the proceedings before the Court
of First Instance and OHIM.

Pleas in law and main arguments

With the present appeal, the Appellant submits that:

in finding reputation under 8(5) CTMR for the earlier marks the
Court of First Instance wrongly:

1. did not, in the contested decision, distinguish between the

36 earlier marks

10. found that a possibility which cannot be ruled out is suffi-
cient to prove prima facie evidence of a future risk, which
is not hypothetical, of the taking of unfair advantage by the
applicant of the reputation of the earlier marks.

Appeal brought on 12 April 2007 by Donal Gordon against
the judgment of
Instance (Third
the Court of First
Chamber) delivered on 7 February 2007 in Case T-175/04:
European
Donal Gordon

the

of

v Commission
Communities

(Case C-198/07 P)

(2007/C 129/21)

2. took into account evidence which did not comply with offi-

cial OHIM guidelines

Language of the case: English

3. took into account evidence with no reference to the earlier

marks

4. took into account undated evidence

Parties

5. did not take into account that the relevant date for proving
reputation is the filing date of the contested CTM application

Appellant: Donal Gordon (represented by: J. Sambon, P.-P. Van
Gehuchten, and Ph. Reyniers, avocats)

6. confirmed reputation based on evidence which was not
approximate in time to the filing date of the contested CTM
application

Other party to the proceedings: Commission of
Communities

the European

7. took into account a market survey as evidence of reputation

without any proof as to:

(a) whether it has been conducted by an independent and

recognised research institute or company

Form of order sought

(b) the number and profile (sex, age, occupation and back-

ruling on the substance of this case

ground) of the interviewees

— to annul the Judgment in Case T-175/04 and to make a

(c) the method and circumstances under which the survey
was carried out and the complete list of questions
included in the questionnaire

(d) whether the percentage reflected in the survey corre-
sponds to the total amount of persons questioned or
only to those who actually replied.

8. did not consider

the individual evidential value of
evidence submitted before making an overall assessment.

the

— to confirm the appellant's intrinsic interest in his CDR inde-

pendent of the administration's interest therein;

— to recognise that invalidity is by definition reversible, and is
so regarded and so treated by the Commission's Medical
Service;

— to accord the appellant the right to judicial protection in

respect of his CDR;

— to allow the claim to damages and to award the appellant

€1.5 million in compensation;

In finding unfair advantage of reputation under 8(5) CTMR the
Court of First Instance wrongly:

— to make an appropriate award as to costs.