Case C-508/07 P: Appeal brought on 21 November 2007 by Cain Cellars, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 12 September 2007 in Case T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2007-11-21
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), trade-mark law, wine

C 22/32

EN

Official Journal of the European Union

26.1.2008

the judgment of

Appeal brought on 21 November 2007 by Cain Cellars, Inc.
against
Instance
(First Chamber) delivered on 12 September 2007 in Case
T-304/05 Cain Cellars, Inc. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

the Court of First

(Case C-508/07 P)

(2008/C 22/57)

Language of the case: German

Parties

Appellant: Cain Cellars, Inc. (represented by: J. Albrecht, lawyer)

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

Form of order sought

— Annul the contested judgment of the Court of First Instance

of 12 September 2007 in Case T-304/05;

— Declare that the ground for refusal in Article 7(1)(b) CTR
does not preclude registration of the trade mark sought;

— Order OHIM to pay the costs of the proceedings before the
Board of Appeal of OHIM, before the Court of First Instance
and of this appeal.

Second ground of appeal

Breach of Article 67(3) of the Rules of Procedure of the Court
of First Instance:

(a) Under Article 67(3) of the Rules of Procedure of the Court
of First Instance, the Court takes into consideration only
documents which have been made available to the lawyers
and agents of the parties and on which they have been
given an opportunity of expressing their views. In paragraph
34, the judgment under appeal refers to documents which
were submitted by OHIM for the first time with its response
and on which the applicant had no opportunity of expres-
sing its views (the written procedure was closed after
submission of the response). The judgment is thus based on
inadmissible evidence. The appellant's lack of opportunity of
giving its views constitutes a breach of the principle of the
right to a fair hearing.

(b) Finally, the appellant alleges that the illustrations of goods
produced in the oral procedure, to which OHIM consented,
to prove the distinctiveness of the mark, which were parti-
cularly important to the question of the distinctiveness of
the mark applied for, were not mentioned in the judgment
under appeal and were not referred to in the findings of the
Court regarding the question of distinctiveness. This also
constitutes a breach of the principle of the right to a fair
hearing.

Action brought on 21 November 2007 — Commission of
the European Communities v Kingdom of Belgium

(Case C-510/07)

(2008/C 22/58)

Pleas in law and main arguments

Language of the case: French

Summary of the grounds of appeal raised by the appellant in
the appeal against the judgment of the Court of First Instance of
the European Communities of 12 September 2007 in Case
T-304/05

First ground of appeal

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and B. Schima, Agents)

Defendant: Kingdom of Belgium

Breach of Article 7(1)(b) of Regulation (EC) No 40/94:

Form of order sought

The appellant complains that in its examination of the facts
material to the assessment of the distinctiveness of the device of
a pentagon as a trade mark, the Court of First Instance did not
have regard to essential circumstances and the relevant legal
viewpoints and principles,
in that it assessed the appellant's
device of a pentagon on a purely theoretical and abstract basis
and ignored the factually-oriented bases of assessment of the
question of
the representation of a
in particular its uniqueness in the extensive wine
pentagon,
sector. The Court classified the sign as a simple ‘geometric
shape’ and inferred a priori and in an abstract manner the lack
of any distinctiveness of this category of simple signs.

the distinctiveness of

The applicant claims that the Court should:

— declare that, by failing to adopt all such laws, regulations or
administrative provisions as may be appropriate to maintain
within the Community at all times the level of stocks of
petroleum products in the second category of petroleum
products listed in Article 2, the Kingdom of Belgium has
failed to fulfil its obligations under Article 1(1) of Council
Directive 68/414/EEC of 20 December 1968 imposing an
the EEC to maintain
obligation on Member States of
minimum stocks of crude oil and/or petroleum products (1);

— order the Kingdom of Belgium to pay the costs.