Case C-39/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 4 February 2008 — Trade mark case: Bild.T-Online.de AG & Co. KG v President of the German Patent- und Markenamt
Date: 2008-02-04
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, restriction on competition, trade-mark law

C 107/12

EN

Official Journal of the European Union

26.4.2008

The third plea in law: the Court of First Instance infringed the
basic principles of proper procedure

The refusal to verify the existence of an alleged infringement of
a fundamental right in any way constitutes an infringement of
that right of a considerably more serious kind than an error of
law relating to the question whether that right has in fact been
infringed, since the party concerned is deprived of the protec-
tion afforded by the fundamental right. Only where the appli-
cant's assertion that the fundamental right has been infringed is
wholly without merit or where the facts relied on in comparing
the situations plainly form no basis for the assertion, can a
substantive examination of the infringement of the fundamental
right be dispensed with. But that does not apply in this case.
The Court of First Instance thus infringed the basis principles of
proper procedure. The judgment, and its underlying reasoning,
cannot be maintained for that reason.

3. If the answer is ‘yes’, is the national court required to take
account of
the prohibition of discrimination having the
effect of distorting competition when interpreting and
applying Article 3 of Directive 89/104 if it has established
discrimination of that nature?

4. If Questions 1 to 3 are answered in the negative, in order to
prevent distortion of competition, must it be possible under
national legislation for the national authority to be placed
under an obligation to initiate, of its own motion, an action
for the annulment of trade marks which have previously
been wrongly registered?

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling from the Bundespatent-
gericht (Germany) lodged on 4 February 2008 — Trade
mark case: Bild.T-Online.de AG & Co. KG v President of
the German Patent- und Markenamt

(Case C-39/08)

(2008/C 107/18)

Language of the case: German

Reference for a preliminary ruling from the Bundespatent-
gericht (Germany) lodged on 8 February 2008 — Trade
mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v
President of the German Patent- und Markenamt

(Case C-43/08)

(2008/C 107/19)

Language of the case: German

Referring court

Bundespatentgericht

Referring court

Bundespatentgericht

Parties to the main proceedings

Bild.T-Online.de AG & Co. KG v President of
Patent- und Markenamt

the German

Parties to the main proceedings

ZVS Zeitungsvertrieb Stuttgart GmbH and President of
German Patent- und Markenamt

the

Questions referred

Questions referred

1. Does Article 3 of Directive 89/104/EEC of 21 December
1988 (1), which seeks to secure equality of opportunity in
matters of competition, require that identical or similar appli-
cations be treated in the same way?

1. Does Article 3 of Directive 89/104/EEC of 21 December
1988 (1) require equal treatment, with regard to the registra-
tion of trade marks, of applicants in competition with one
another in order to safeguard equality of opportunity in
matters of competition?

2. If the answer is ‘yes’, is the national court required to investi-
gate specific indications of unequal treatment which distorts
competition and, in so doing, to take account, in its analysis,
of earlier decisions of the competent authority in similar
cases?

2. If the answer is ‘yes’, is the national court required to investi-
gate specific indications of unequal treatment which distorts
competition and, in so doing, to take account, in its analysis,
of earlier decisions of the competent authority in similar
cases?