Case C-344/07 P: Appeal brought on 25 July 2007 by Focus Magazin Verlag GmbH against the judgment of the Court of First Instance (Third Chamber) delivered on 16 May 2007 in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) , Intervener: Focus Magazin Verlag GmbH
Date: 2007-07-25
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, action for annulment (EU), appeal, audiovisual equipment, office supplies, publication, recording medium, trade-mark law

29.3.2008

EN

Official Journal of the European Union

C 79/11

Order of the Court (Seventh Chamber) of 16 January 2008
(reference for a preliminary ruling from the Conseil de
prud'hommes de Beauvais (France)) — Olivier Polier v
Najar EURL

(Case C-361/07) (1)

Appeal brought on 25 July 2007 by Focus Magazin Verlag
GmbH against the judgment of the Court of First Instance
(Third Chamber) delivered on 16 May 2007 in Case
T-491/04 Merant GmbH v Office for Harmonisation in the
Intervener:
Internal Market

(Trade Marks and Designs),

Focus Magazin Verlag GmbH

(Reference for a preliminary ruling — Charter of Funda-
mental Rights of the European Union — Convention No 158
of the International Labour Organisation — European Social
Charter — Dismissal of an employee without valid reason —
Manifest lack of jurisdiction of the Court)

(Case C-344/07 P)

(2008/C 79/20)

Language of the case: German

(2008/C 79/19)

Language of the case: French

Parties

Referring court

Other parties to the proceedings:

Appellant: Focus Magazin Verlag GmbH (represented by: M.
Herrmann and B. Müller, lawyers)

Conseil de prud'hommes de Beauvais (France)

Parties

Applicant: Olivier Polier

Defendant: Najar EURL

1. Office for Harmonisation in the Internal Market

(Trade

Marks and Designs)

2. Merant GmbH

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities (Third Chamber) of 16 May 2007 in
Case T-491/04 and dismiss the action

Re:

Pleas in law and main arguments

the European Union (Articles 30 and 33),

Reference for a preliminary ruling — Conseil de Prud'Hommes
de Beauvais — Interpretation of the Charter of Fundamental
Rights of
the
European Social Charter (Articles 24 and 27) and Convention
No 158 of the International Labour Organisation on termina-
tion of employment — Dismissal of an employee without valid
reason — Whether national legislation is valid in the light of
the abovementioned provisions

Operative part of the order

The Court of Justice of the European Communities manifestly does not
have jurisdiction to answer the questions posed by the Conseil de
prud'hommes de Beauvais by decision of 9 July 2007.

(1) OJ C 269, 10.11.2007.

1. The judgment is based on an incorrect interpretation of
Article 8(1)(b) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark (1) and
thus on a serious infringement of the intervener's/appellant's
rights.

2. The infringement is constituted by an incorrect and cursory
assessment of the facts on which the decision is based and
an extension of the scope of the expression ‘likelihood of
confusion’ for the purposes of Article 8(1)(b) of Regulation
No 40/94.

3. The Court of First Instance's interpretation that the concep-
tual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is
not in accordance with the general principles governing the
issue of likelihood of confusion. The concept can only be
interpreted in that way if
the
German language are incorrectly applied. On the basis of
that interpretation of the sign ‘MICRO FOCUS’ the Court
arrived at
finding that only the figurative
element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’
should be compared with the sign ‘FOCUS’
in respect of
which registration is sought. Building on that interpretation,
the Court then erred in law in finding that there was a

the grammatical rules of

the incorrect

C 79/12

EN

Official Journal of the European Union

29.3.2008

likelihood of confusion.
the Court had considered the
whole of the word/figurative sign ‘MICRO FOCUS’, it would
have correctly interpreted Article 8(1)(b) of Regulation
No 40/94.

If

(1) OJ 1994 L 11, p. 1.

2. If Question 1(a)

answered in the
is
Question 1(b) is answered in the negative:

affirmative

and

In legal proceedings between private individuals, must a
national court disapply a statutory provision which is clearly
incompatible with Community law, or
is the legitimate
expectation of persons subject to the law — that national
laws which are in force will be applied — to be taken into
account so that a national law is disapplied only after the
Court of Justice has ruled on the provision at issue or on a
substantially similar provision?

Reference for a preliminary ruling from the Landesarbeits-
lodged on 13 December
gericht Düsseldorf

(Germany)

2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG

(1) OJ L 303, p. 16.

(Case C-555/07)

(2008/C 79/21)

Language of the case: German

Referring court

Action brought on 21 December 2007 — Commission of
the European Communities v Republic of Austria

(Case C-564/07)

(2008/C 79/22)

Landesarbeitsgericht Düsseldorf

Language of the case: German

Parties to the main proceedings

Applicant: Seda Kücükdeveci

Defendant: Swedex GmbH & Co. KG

Questions referred

1.

(a) Is a national provision which provides for the periods of
notice on termination which employers are required to
observe to be increased incrementally with the length of
service, but which disregards periods of the employee's
employment before the age of 25, incompatible with the
Community law prohibition against discrimination on
the ground of age, and specifically with primary Com-
munity law or with Council Directive 2000/78/EC of
27 November 2000 (1)?

(b) Can the fact that employers are required to observe only
a basic period of notice when terminating the employ-
ment of younger employees be justified on the grounds
that employers are recognised as having a commercial
interest in flexibility as regards staffing — an interest
which would be adversely affected by longer periods of
notice — and that younger employees are not recognised
as having the protection available to older employees (in
the form of longer notice periods) with respect to their
employment
example
because, having regard to their age and/or their lesser
social, family and private obligations they are assumed to
have greater professional and personal
flexibility and
mobility?

arrangements,

status or

for

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and H. Krämer, acting as Agents)

Defendant: Republic of Austria

Form of order sought

— declare that the Republic of Austria has infringed its obliga-

tions under Article 49 EC, by

— requiring all patent

lawyers

lawfully established in
another Member State wishing to provide services
temporarily in Austria to first enrol
in the special
Austrian registers,
insofar as registration is conditional
on taking out professional liability insurance,

— making patent lawyers lawfully established in another
Member State wishing to provide services temporarily in
to disciplinary supervision by the
Austria
Austrian authorities, even as
for
regards
conduct other than the serious breach of professional
duties,

sanctions

subject

— making any provision of service by a patent

lawyer
lawfully established in another Member State wishing to
provide services temporarily in Austria conditional on
taking out professional liability insurance,