Case C-17/08 P: Appeal brought on 17 January 2008 by MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor against the judgment of the Court of First Instance (First Chamber) delivered on 8 November 2007 in Case T-459/05 MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2008-01-17
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, information technology industry, software, trade-mark law

C 79/18

EN

Official Journal of the European Union

29.3.2008

informed the employer, in a letter sent by recorded delivery
within 30 days from the date of redundancy or from the
date on which the redundancies acquired their status as
collective redundancies, that he was challenging compliance
with the procedure for informing and consulting and he was
seeking to be reinstated in his post,

is such a system compatible with the fundamental rights of
the individual which form an integral part of the general
principles of
law — respect for which is ensured by the
Community judicature — and more particularly with
Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms?

3. Can a national court seised of a dispute between two indivi-
duals — in the present case a worker and his former
employer — disapply a provision of national law which is
contrary to the provisions of a Community directive, such as
Article 67 of the Law of 13 February 1998 on measures in
favour of employment, in order to give effect to other provi-
sions of national law which transpose, apparently correctly, a
Community directive, such as the provisions contained in
Collective Labour Agreement No 24 of 2 October 1975,
made compulsory by Royal Decree of 21 January 1976, but
whose effective application is frustrated by the provision of
national law which is contrary to a Community directive, in
the present case Article 67 of the Law of 13 February 1998;

(2) Must that same provision be interpreted as precluding a
provision of national law, such as Article 67(2) of the
Law of 13 February 1998 on measures in favour of
employment, in so far as it provides that a worker made
redundant can challenge compliance with the procedure
for informing and consulting only on the ground that
the employer has not complied with the conditions
referred to in Article 66(1)(ii) at issue in point 1 above?

(1) OJ 1998 L 225, p. 16.

17

2008

January

brought on

Appeal
by MPDV
Mikrolab GmbH, Mikroprozessordatenverarbeitung und
Mikroprozessorlabor against the judgment of the Court
of First Instance (First Chamber) delivered on 8 Novem-
ber 2007 in Case T-459/05 MPDV Mikrolab GmbH,
Mikroprozessordatenverarbeitung und Mikroprozessorlabor v
(Trade
Office for Harmonisation in the Internal Market

Marks and Designs)

(Case C-17/08 P)

(2008/C 79/31)

Language of the case: German

4. (1) Must Article 2 of Council Directive 98/59/EC of 20 July
1998, particularly paragraphs (1), (2) and (3) thereof, be
interpreted as precluding a provision of national
law,
such as Article 66(1) of the Law of 13 February 1998
on measures in favour of employment,
in so far as it
provides that an employer who intends to satisfy his
obligations in the context of collective redundancies is
only bound to provide evidence that he has fulfilled the
following conditions:

Parties

1. he must present to the Works Council or, where no
such council exists, to the union delegation or, where
no such delegation exists, to the workers, a written
report in which he indicates his intention to proceed
with collective redundancies;

2. he must be able to provide evidence, in respect of the
intention to proceed with collective redundancies,
that he has assembled the Works Council or, where
no such council exists, that he has met with the
union delegation or, where no such delegation exists,
with the workers;

3. he must have allowed the staff representatives within
the Works Council or, where no such council exists,
the members of the union delegation or, where no
such delegation exits, the workers, to raise questions
regarding the collective redundancies contemplated
and to make arguments or submit counter-proposals
on that issue;

Appellant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbei-
tung und Mikroprozessorlabor (represented by: W. Göpfert,
Rechtsanwalt)

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

Form of order sought

— set aside the judgment under appeal insofar as the Court of
First Instance dismissed the heads of claim submitted before
it,

— annul

the decision of

the Second Board of Appeal of
19 October 2005 in the appeal proceedings R 1059/2004-2,
and

— order the respondent to pay the costs of the appeal.

Pleas in law and main arguments

4. he must have examined those questions, arguments
and counter-proposals referred to in (iii) and have
replied to them.

The appeal is based on errors in law in the interpretation in the
judgment under appeal of Article 7(1)(b) and (c) of the Com-
munity Trade Mark Regulation.

29.3.2008

EN

Official Journal of the European Union

C 79/19

That erroneous interpretation resulted in an erroneous outcome
— rejection of the application for registration of the Com-
munity word mark ‘manufacturing score card’. In particular, not
only did the Court of First Instance make a wrong assessment
of the content; it also seriously misinterpreted the requirements
of distinctive character and the need to keep terms free as
formulated by the European Court of Justice in relation to appli-
cations for a Community trade mark and the relevant classes of
persons.

It was not permissible for the Court of First Instance to divide
the verbal composition submitted in the application into its
constituent parts and to find, on that basis, that the mark was
not eligible for protection. Dividing it up in this way does not
correspond to how the ‘normal’ class of persons assesses and
interprets the mark when it sees it as a whole. Moreover, the
Court of First Instance was wrong to base its finding that the
mark lacked distinctive character and that there was a need to
keep the term free on the observation that the verbal composi-
trade, were
tion consisted of parts which,
normally used to explain the purpose and function of
the
services covered. The relevant trade circles would not, however,
recognise any immediately obvious meaning in the application
for a Community trade mark ‘manufacturing score card’,
consisting of a combination of three English words. Conse-
quently, the mark applied for has the minimum distinctive char-
acter required by Article 7(1)(b) of the Community Trade Mark
Regulation and also does not designate characteristics of goods
or services in accordance with Article 7(1)(c) of the Community
Trade Mark Regulation.

in the course of

Reference for a preliminary ruling from the Tribunal
d'Instance de Bordeaux (France)
lodged on 21 January
2008 — Foselev Sud-Ouest SARL v Administration des
douanes et des droits indirects

(Case C-18/08)

(2008/C 79/32)

Language of the case: French

Referring court

Tribunal d'Instance de Bordeaux

Question referred

the European
Article 6(2)(b) of Directive 1999/62/EC of
Parliament and of the Council on the charging of heavy goods
vehicles for the use of certain infrastructures (1) provides for the
possibility for a Member State to exempt certain categories of
vehicle. In this context, is the authorisation given to France by
the Commission
in Decision
2005/449/EC, to exempt certain categories of vehicles directly
applicable to individuals or, as it concerns an authorisation deci-
sion addressed to France,
into
national law necessary?

is a measure transposing it

2005 (2),

June

20

on

(1) OJ 1999 L 187, p. 42.
(2) 2005/449/EC: Commission Decision of 20 June 2005 concerning a
request for exemption from the vehicle tax rules submitted by France
pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European
Parliament and of the Council on the charging of heavy goods vehi-
cles for the use of certain infrastructures (OJ 2005 L 158, p. 23).

the judgment of

Appeal brought on 22 January 2008 by Enercon GmbH
against
Instance
(Fifth Chamber) delivered on 15 November 2007 in Case
T-71/06 Enercon GmbH v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

the Court of First

(Case C-20/08 P)

(2008/C 79/33)

Language of the case: German

Parties

Appellant: Enercon GmbH (represented by: R. Böhm and U.
Sander, Rechtsanwälte)

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

Form of order sought

— Set aside the judgment of the Fifth Chamber of the Court of

First Instance of 15 November 2007 (Case T-71/06);

Parties to the main proceedings

— uphold the forms of order sought at first instance;

Applicant: Foselev Sud-Ouest SARL

— in the alternative, refer the case back to the Court of First

Instance;

Defendant: Administration des douanes et des droits indirects

— order OHIM to pay the costs of both instances.