Case C-18/08: 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
Date: 2008-01-21
Institutions: Court of Justice
Subjects: commercial vehicle, interpretation of the law, tax exemption, toll, transport infrastructure, vehicle tax

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.