Case C-134/08: Reference for a preliminary ruling from the Bundesfinanzhof lodged on 2 April 2008 — J.E. Tyson Parketthandel GmbH hanse j. v Hauptzollamt Bremen
Date: 2008-04-02
Institutions: Court of Justice
Subjects: United States, additional duty, customs duties, import, interpretation of the law, originating product

C 171/12

EN

Official Journal of the European Union

5.7.2008

Article 6 of Directive 92/50 is applicable only if there are legislative,
regulatory or administrative provisions published which grant the bene-
ficiary an exclusive right concerning the subject-matter of the contract
awarded.

b) It wrongly defined the relevant public as made up of consu-
mers who only purchase computer goods and services,
rather than consumers of all the goods and services covered
by the contested specification.

(1) OJ C 235, 6.10.2007.

the judgment of

Appeal brought on 13 February 2008 by Gateway, Inc.
against
Instance
(Fifth Chamber) delivered on 27 November 2007 in Case
T-434/05: Gateway, Inc. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

the Court of First

(Case C-57/08 P)

(2008/C 171/20)

Language of the case: English

Parties

Appellant: Gateway, Inc. (represented by: C. R. Jones, Solicitor)

Other parties to the proceedings: Office for Harmonisation in the
(Trade Marks and Designs), Fujitsu Siemens
Internal Market
Computers GmbH

Form of order sought

The appellant claims that the Court should:

— set aside the decision of the Court of First Instance (Fifth

Chamber) of 27 November 2007 in Case T-434/05;

— allow in its entirety the appellant's opposition to the regis-

tration of the trade mark applied for;

— order OHIM to pay the costs.

Pleas in law and main arguments

c) It wrongly held that the conflicting marks are not visually,

phonetically or conceptually similar.

d) It wrongly held that the question of similarity in respect of
two conflicting word marks should be subject to the condi-
tion that the overall visual, phonetic or conceptual impres-
sion produced by the composite word sign be dominated by
the part which is represented by the earlier mark.

e) When conduction its assessment of the similarity between
the conflicting marks it failed to give sufficient weight to the
distinctiveness of ‘gateway’ as an earlier trade mark of the
appellant's for computer goods and services within the rele-
vant target public.

f) It failed to give sufficient regard to the fact that trade marks
with a highly distinctive character, either per se or because of
the reputation they possess, enjoy greater protection than
marks with a less distinctive character.

g) It wrongly concluded that ‘gateway’ does not have an inde-

pendent distinctive role within the mark applied for.

h) It wrongly held that the likelihood of confusion should be
subject to the condition that the overall impression produced
by the composite sign be dominated by the part which is
represented by the earlier mark.

i) It failed to assess properly the likely visual, conceptual and
phonetic impact
the word ‘gateway’ would have on the
average consumer of the goods and services in issue when
incorporated as an element of the mark applied for.

Reference for a preliminary ruling from the Bundes-
lodged on 2 April 2008 — J.E. Tyson
finanzhof

Parketthandel GmbH hanse j. v Hauptzollamt Bremen

(Case C-134/08)

(2008/C 171/21)

Language of the case: German

The appellant submits that the Court of First Instance made the
following errors:

Referring court

a) The terms ‘media gateway’ and ‘gateway’ have a very specific
meaning in the IT market for particular forms of device
which convert one protocol or format to another. However,
the Court of First Instance wrongly held that when ‘gateway’
was incorporated as an element of the mark applied for it
served to designate descriptive characteristics of all the goods
or services covered by the contested specification, whereas in
fact none of the goods or services covered by the contested
mark are listed as ‘media gateways’ or ‘gateways’.

Bundesfinanzhof (Germany)

Parties to the main proceedings

Applicant: J.E. Tyson Parketthandel GmbH hanse j.

Defendant: Hauptzollamt Bremen

5.7.2008

EN

Official Journal of the European Union

C 171/13

Question referred

Is Article 4(2) of Council Regulation (EC) No 2193/2003 of
8 December 2003 establishing additional customs duties on
imports of certain products originating in the United States of
America (1)
to be interpreted, contrary to its wording, as
meaning that products for which it can be demonstrated that
they are on their way to the Community on the date of first
application of
the additional duties and whose destination
cannot be changed are not affected by the additional duty?

(1) OJ 2003 L 328, p. 3.

Reference for a preliminary ruling from the Bundes-
verwaltungsgericht (Germany) lodged on 3 April 2008 —
Janko Rottmann v Freistaat Bayern

(Case C-135/08)

(2008/C 171/22)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Janko Rottmann

Defendant: Freistaat Bayern

Questions referred

1. Does Community law preclude the legal consequence of the
loss of Union citizenship (and of the associated rights and
fundamental freedoms) resulting from the fact that a revoca-
tion, lawful as such under national (German) law, of a natur-
alisation as a national of a Member State (Germany) acquired
by intentional deception has the effect, in combination with
the national
law on nationality of another Member State
(Austria) — as with the claimant in the present case because
of the non-revival of the original Austrian nationality — that
statelessness supervenes?

2. If Question 1 is answered in the affirmative:

Must the Member State (Germany) which has naturalised the
citizen of the Union and now wishes to revoke the naturali-
sation obtained by deception, having due regard to Com-
munity law, refrain altogether or temporarily from revoking
the naturalisation if or as long as revocation would have the

legal consequence of loss of Union citizenship (and of the
associated rights and fundamental
freedoms) described in
Question 1, or is the other Member State (Austria) of former
nationality obliged, having due regard to Community law, to
interpret and apply, or even adjust, its national law so that
that legal consequence does not supervene?

Reference for a preliminary ruling from the Tallinna
Halduskohus (Estonia) lodged on 7 April 2008 — Rakvere
Lihakombinaat AS v Põllumajandusminister and Maksu- ja
Tolliameti Ida maksu- ja tollikeskus

(Case C-140/08)

(2008/C 171/23)

Language of the case: Estonian

Referring court

Tallinna Halduskohus

Parties to the main proceedings

Applicant: Rakvere Lihakombinaat AS

Defendants: Põllumajandusminister and Maksu- ja Tolliameti Ida
maksu- ja tollikeskus

Questions referred

the first

1. Must frozen mechanically separated chicken meat (mechani-
cally separated meat was defined for
time in
point 1.14 of Annex I to Regulation (EC) No 853/2004 (1)
of the European Parliament and of the Council of 29 April
2004 laying down specific hygiene rules for food of animal
origin) be classified as from 1 May 2004 under CN code
0207 14 10 or CN code 0207 14 99 in Annex I to Council
Regulation (EEC) No 2658/87 (2) of 23 July 1987 on the
tariff and statistical nomenclature and on the Common
Customs Tariff?

2. If the product described in Question 1.1 must be classified
under CN code 0207 14 10, to seek a preliminary ruling on
the following question:

2.1 Does Article 4(1) and (2) of Commission Regulation
(EC) No 1972/2003 (3) preclude the ascertainment of
the amount of an operator's surplus stock by automati-
cally deducting from the surplus stock (regarded as tran-
sitional stock) the operator's average stock as at 1 May
of the four years of activity preceding 1 May 2004,
multiplied by 1.2?