Case C-24/08: Action brought on 22 January 2008 — Commission of the European Communities v Republic of Portugal
Date: 2008-01-22
Institutions: Court of Justice
Subjects: European Commission, Portugal, TRIPS, action for failure to fulfil an obligation, industrial property, intellectual property, national implementing measure

C 79/20

EN

Official Journal of the European Union

29.3.2008

Grounds of appeal and main arguments

— order the Republic of Portugal to pay the costs.

By its first ground of appeal the appellant claims that there has
the duty to give reasons under
been an infringement of
Article 73 of the Community Trade Mark Regulation. Neither in
the decision of the Board of Appeal nor in the judgment under
appeal of the Court of First Instance were any findings set out
or explanations given regarding the shapes which OHIM or the
Court of First Instance recognised as being common on the
market and in what ways the shape applied for would have to
differ from common shapes on the market to be found to be
distinctive. In the absence of such findings or explanations it is
not conceivable how OHIM or the Court of First Instance could
have come to the conclusion that the shape applied for was not
distinctive.

the appellant alleges that
By its second ground of appeal
Article 7(1)(b) of the Community Trade Mark Regulation has
been infringed by an assessment of distinctiveness which, in the
absence of a statement of the factual basis for its decision, could
only have come about as a result of a distortion by the Court of
First Instance of the facts presented to it, a matter open to
review by the Court of Justice. Contrary to the view of the
Court of First Instance in the judgment under appeal, the appel-
lant claims that the shape applied for is distinctive since it is
significantly different from the normal shapes found on the
market and is not merely a variant of such shapes. Among the
relevant public the shape applied for can be recognised and
indeed is recognisable as an indication of origin irrespective of
its use and without further enquiries or thought.

Pleas in law and main arguments

The period prescribed for transposing the Directive into national
law expired on 29 April 2004.

(1) OJ 2004 L 157, p. 45.

Appeal brought on 24 January 2008 by Giuseppe Gargani
against
Instance
(Third Chamber) of 21 November 2007 in Case T-94/06
Giuseppe Gargani v European Parliament

the Court of

the order of

First

(Case C-25/08 P)

(2008/C 79/35)

Language of the case: German

Parties

Appellant: Giuseppe Gargani
Rechtsanwalt)

(represented by: W. Rothley,

Other party to the proceedings: European Parliament

Action brought on 22 January 2008 — Commission of the
European Communities v Republic of Portugal

Form of order sought

(Case C-24/08)

(2008/C 79/34)

— Set aside the order of the Court of First Instance (Third

Chamber) of 21 November 2007 in its entirety;

— refer the case back to the Court of First Instance for a fresh

Language of the case: Portuguese

decision;

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

Parties

Pleas in law and main arguments

Applicant: Commission of the European Communities (repre-
sented by: M. Afonso and H. Kraemer, acting as Agents)

Defendant: Republic of Portugal

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/48/EC (1) of
the
Council of 29 April 2004 on the enforcement of intellectual
property rights, or in any event by not communicating such
measures to the Commission, the Republic of Portugal has
failed to fulfil its obligations under that directive;

the European Parliament and of

The Court of First Instance failed to give the appellant a fair
hearing by failing to address the appellant's submissions and,
instead, changing the parties and then declaring the action to be
inadmissible.

the
The action, which was brought by the Chairman of
European Parliament's Committee on Legal Affairs, not
(as
stated in the order under appeal) by an individual as such, is
expressly directed against the then President of the European
Parliament, and not against the European Parliament itself or
against a ‘natural person’. The Court of First Instance regards the
appellant as any Italian applicant seeking a declaration that the
conduct of the European Parliament is unlawful, and the Presi-
dent of the European Parliament at the time as any Spanish
defendant being accused in respect of the unlawful conduct of
the President of the European Parliament.