Case C-215/07: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 April 2007 — Verlag Schawe GmbH v Sächsisches Druck- und Verlagshaus AG
Date: 2007-07-07
Institutions: Court of Justice
Subjects: data protection, data transmission, database, dissemination of information, interpretation of the law, invitation to tender

C 155/12

EN

Official Journal of the European Union

7.7.2007

expressly distinguishes between these two situations and limits
the exclusion of compensation in relation to those persons
(including the driver) in the vehicle that caused the damage or
injury.

Appeal brought on 23 April 2007 by Indorata-Serviços e
Gestão, Lda against the judgment delivered on 15 February
2007 in Case T-204/04 Indorata-Serviços e Gestão, Lda v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case C-212/07 P)

(2007/C 155/22)

Language of the case: German

Parties

Appellant:
T. Wallentin, Rechtsanwalt)

Indorata-Serviços e Gestão, Lda

(represented by:

the intended purpose of the goods in Class 22 to the relevant
public, and therefore in its entirety also shows a sufficiently
direct and genuine link to the goods concerned in Class 22, the
Court of First Instance misinterpreted and misapplied the provi-
sion at issue. In addition, HAIRTRANSFER cannot be descriptive
in respect of the rejected goods per se, since an ‘exclusively
descriptive’ function of goods is not appropriate for services (!)

By its third ground of appeal, the appellant relies on breach of
the principle of equal
treatment. Signs which are definitely
similar to the set of words at issue have been the subject of deci-
sions of OHIM on the registration of Community trade marks.
The appellant stated in the proceedings before the Court of First
Instance that the sign in the present case has distinctive char-
acter also on account of
the settled practice of OHIM, the
Austrian Patent Office and the Patent Offices of numerous
Member States.

Finally, by its fourth ground of appeal, the appellant relies on
breach of general principles of EC law. The judgement of the
Court of First Instance under appeal infringes the requirement
of objectivity and the principle of coherence in decision-making,
inasmuch as within one and the same application for a Com-
munity trade mark registration a distinction is made which
cannot be objectively applied. It is quite evident that ‘hair thick-
ening’ in Class 44 and rejected by the Office is included in hair
lengthening. Registration of the sign HAIRTRANSFER in respect
of ‘hair lengthening’ and rejection in respect of ‘hair thickening’
is therefore objectively unjustified.

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

(1) OJ C 82 of 14.4.2007, p. 32.

Form of order sought

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

15 February 2007 in Case T-204/04 (1);

— order the respondent to pay the costs.

Pleas in law and main arguments

The appellant argues four grounds in support of
against the above judgment of the Court of First Instance.

its appeal

By its first ground of appeal, the appellant relies on infringe-
ment of Article 7(1)(b) of Regulation No 40/94. Contrary to the
observations of the Court, the term HAIRTRANSFER is capable
of registration since its fanciful nature gives it distinctive char-
acter and is therefore capable of distinguishing the goods and
services of the appellant from those of other undertakings.

for

Reference
from the
preliminary
Bundesgerichtshof (Germany) lodged on 24 April 2007 —
und
Verlag

Sächsisches Druck-

Schawe GmbH v

ruling

a

Verlagshaus AG

(Case C-215/07)

(2007/C 155/23)

Language of the case: German

By its second ground of appeal, the appellant relies on infringe-
ment of Article 7(1)(c) of Regulation No 40/94. By its finding
that the sign HAIRTRANSFER in respect of the goods applied
for in Class 8 has a sufficiently direct and genuine link to the
goods concerned and that the sign HAIRTRANSFER indicates

Referring court

Bundesgerichtshof

7.7.2007

EN

Official Journal of the European Union

C 155/13

Parties to the main proceedings

and with

Applicant: Verlag Schawe GmbH

Defendant: Sächsisches Druck- und Verlagshaus AG

Questions referred

1. Do Article 7(1) and (5) and Article 9 of Directive 96/9/EC of
the European Parliament and of the Council of 11 March
1996 on the legal protection of databases (1) prohibit a legal
provision of a Member State, according to which an official
database which is published as a matter of general informa-
tion for official purposes (in this instance: a systematic and
tender documents
complete collection of all calls
emanating from a German Land) does not benefit from sui
generis protection under the directive?

for

2. If the answer to Question 1 is in the negative: is this also the
case where the database is constructed not by a public body
but by a private undertaking on its behalf, to which all
bodies of this Land issuing calls for tender must directly
submit their calls for tender documents for publication?

(1) OJ 1996 L 77, p. 20.

Directive 2004/50/EC of the European Parliament and of
the Council of 29 April 2004 amending Council Directive
the trans-European
96/48/EC on the interoperability of
high-speed rail system and Directive 2001/16/EC of
the
European Parliament and of the Council on the interoper-
ability of the trans-European conventional rail system (2),

or in any event by not communicating such measures to the
Commission, the Netherlands has failed to fulfil its obliga-
tions under those directives;

— order that the Kingdom of the Netherlands pay the costs.

Pleas in law and main arguments

The period prescribed for
national law expired on 30 April 2006.

transposing those directives into

(1) OJ L 164, 30.4.2004, p. 44.
(2) OJ L 164, 30.4.2004, p. 114.

Reference for a preliminary ruling from the Raad van State
(Belgium) lodged on 27 April 2007 — VZW de Nationale
Raad van Dierenkwekers en Liefhebbers and VZW Andibel
v Belgische Staat

Action brought on 25 April 2007 — Commission of the
European Communities v Kingdom of the Netherlands

(Case C-217/07)

(2007/C 155/24)

(Case C-219/07)

(2007/C 155/25)

Language of the case: Dutch

Language of the case: Dutch

Referring court

Parties

Raad van State (Belgium)

Parties to the main proceedings

Applicant: Commission of the European Communities (repre-
sented by: W. Wils and P. Dejmek, acting as Agents)

Applicants: VZW de Nationale Raad van Dierenkwekers en Lief-
hebbers and VZW Andibel

Defendant: Kingdom of the Netherlands

Defendant: Belgische Staat

Form of order sought

Questions referred

— declaration that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/49/EC of the European Parliament and of the Council
of 29 April 2004 on safety on the Community's railways
and amending Council Directive 95/18/EC on the licensing
of railway undertakings and Directive 2001/14/EC on the
allocation of railway infrastructure capacity and the levying
of charges for the use of railway infrastructure and safety
certification (1),

1. Must Article 30 of the Treaty of 25 March 1957 establishing
the European Community, in itself or in conjunction with
Council Regulation (EC) No 338/97 (1) of 9 December 1996
on the protection of species of wild fauna and flora by regu-
lating trade therein, be interpreted as meaning that a prohibi-
tion on the import of or trade in fauna, imposed in imple-
mentation of Article 3bis(1) of the Law of 4 August 1986
on the protection and welfare of animals (Wet betreffende de
is not justified in
bescherming en het welzijn der dieren),