Case C-133/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden, lodged on 2 April 2008 — Intercontainer Interfrigo (ICF) SC v Balkenende Oosthuizen BV and MIC Operations BV
Date: 2008-04-02
Institutions: Court of Justice
Subjects: carriage of goods, chartering, contract, interpretation of the law

C 158/10

EN

Official Journal of the European Union

21.6.2008

Commission and a Member State on scientific grounds is to be
resolved, but not in cases which,
like the present case, are
concerned only with incomplete notification of sites generally.

The procedural objections put forward by the defendant are
therefore not well founded.

According to the appellant the CFI should have assessed the
distinctive character of the mark on the overall perception of
the wording ‘SAFETY 1st’ by the average consumer. The splitting
by the Court of the trademark ‘SAFETY 1st’ into its component
parts does not reflect the view and approach adopted by consu-
mers.

Appeal brought on 1 April 2008 by Dorel Juvenile Group,
Inc. against the judgment of the Court of First Instance
(Fifth Chamber) delivered on 24 January 2008 in Case
for
T-88/06, Dorel
Harmonization in the Internal Market (Trade Mark and
Designs) (OHIM)

Juvenile Group,

Inc. v Office

The contested judgment relies on a criterion according to which
the expression safety first is used to designate the goods covered
by the mark applied for ‘as information relating to a quality or
characteristic of
the goods’. The appellant submits that that
criterion is relevant in the context of Article 7(1)(c) of Regu-
lation No 40/94 but
the yardstick against which
Article 7(1)(b) thereof should be judged. Therefore, the Court
based its view that the sign in question fell within the scope of
Article 7(1)(b) on the fat that it did not satisfy the criteria for
protection governed by Article 7(1)(c).

is not

it

(Case C-131/08 P)

(2008/C 158/14)

Language of the case: English

Finally the appellant submits that the CFI also ignored the fact
that Article 12(b) of Regulation No 40/94 (1) constitutes a
corrective to the interpretation of Article 7(1)(b).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11).

Parties

Appellant: Dorel
Simon, Rechtsanwältin)

Juvenile Group,

Inc.

(represented by: Dr. G.

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

Form of order sought

Reference for a preliminary ruling from the Hoge Raad der
lodged on 2 April 2008 — Intercontainer
Nederlanden,
Interfrigo (ICF) SC v Balkenende Oosthuizen BV and MIC
Operations BV

(Case C-133/08)

(2008/C 158/15)

The appellant claims that the Court should:

Language of the case: Dutch

— annul

judgment of

the Court of First

Instance (Fifth

Chamber) of 24 January 2008, Case T-88/06;

— annul

the Decision of

the Second Board of Appeal of

11 January 2006, Case R 616/2004-2 and

Referring court

— order the defendant to pay the costs.

Hoge Raad der Nederlanden

Pleas in law and main arguments

The appellant submits that the CFI's assessment of the condi-
tions for registration of a trademark is too restrictive. The appel-
lant argues that the CFI assessed the character of
the term
‘SAFETY 1st’ by means of a separate analysis of the element ‘1st’
and based its judgment on the presumption that as the element
‘1st’ was devoid of a distinctive character it cannot acquire such
character when combined with the trademark element ‘SAFETY’.

Parties to the main proceedings

Appellant: Intercontainer Interfrigo (ICF) SC

Respondents: Balkenende Oosthuizen BV and MIC Operations BV

21.6.2008

EN

Official Journal of the European Union

C 158/11

Questions referred

Other party/parties to the proceedings: Council of the European
Union

(a) Must Article 4(4) of

the 1980 Convention on the law
applicable to contractual obligations (1) be construed as
meaning that it relates only to voyage charter parties and
that other forms of charter party fall outside the scope of
that provision?

(b) If Question (a)

is answered in the affirmative, must
Article 4(4) of the 1980 Convention then be construed as
meaning that, in so far as other forms of charter party also
relate to the carriage of goods, the contract in question
comes, so far as that carriage is concerned, within the scope
of that provision and the applicable law is for the rest deter-
mined by Article 4(2) of the 1980 Convention?

(c) If Question (b) is answered in the affirmative, which of the
two legal bases indicated should be used as the basis for
examining a contention that the legal claims based on the
contract are time-barred?

(d) If the predominant aspect of the contract relates to the
carriage of goods, should the division referred to in Ques-
tion (b) not be taken into account and must then the law
applicable to all constituent parts of the contract be deter-
mined pursuant to Article 4(4) of the 1980 Convention?

With regard to the ground set out in 3.6.(ii) above:

(e) Must the exception in the second clause of Article 4(5) of
the 1980 Convention be interpreted in such a way that the
the 1980
presumptions in Article 4(2),
Convention do not apply only if it is evident from the
circumstances in their totality that the connecting criteria
indicated therein do not have any genuine connecting value,
or indeed if it is clear therefrom that there is a stronger
connection with some other country?

(3) and (4) of

(1) Convention on the law applicable to contractual obligations, opened

for signature in Rome on 19 June 1980.

Appeal brought on 7 April 2008 by Foshan Shunde
Yongjian Housewares & Hardware against the judgment
delivered on 29 January 2008 in Case T-206/07, Foshan
Shunde Yongjian Housewares & Hardware v Council of
the European Union

(Case C-141/08 P)

(2008/C 158/16)

Language of the case: French

Parties

Appellant(s): Foshan Shunde Yongjian Houewares & Hardware
Co. Ltd (represented by: J.-F. Bellis, avocat, G. Vallera, barrister)

Form of order sought

— Annul the judgment under appeal;

— Grant the forms of order sought in the proceedings before
the Court of First Instance in Case T-206/07, that is to say,
annulment of Regulation (EC) No 452/2007 (1) insofar as it
applies to the appellant;

— Order the Council to pay the costs incurred before the

Court of First Instance and the Court of Justice.

Pleas in law and main arguments

The appellant relies on two pleas in law in support of its appeal.

By its first plea, the appellant complains that the Court of First
Instance did not address the first plea which it raised in support
of annulment in rejecting that plea on the basis of a finding
which was manifestly not supported by the documents on the
file, that is to say, that the discussion concerning the interpreta-
tion of Article 2(7)(c) of the Basic Regulation (2) and of para-
graph 44 of the judgment of the Court of First Instance of
14 November 2006 in Case T-138/02 Nanjing Metalink v
Council
[2006] ECR II-4347 was without relevance. As the
Council itself observed in its defence, it is precisely because the
Commission considered that the necessary conditions for the
amendment of the initial determination, as set out in that judg-
ment, were not met that it revoked its final decision granting
the appellant market economy treatment. Therefore, the Court
of First Instance based its reasoning on inaccurate findings and
failed to rule on the interpretation of Article 2(7)(c) of the Basic
Regulation and on the question whether or not that article
allows the Commission to revise, in the course of the procedure,
its initial position on the subject of
the grant of market
economy treatment.

By its second plea, the applicant submits that the Court of First
Instance wrongly concluded that the infringement of its rights
to a fair hearing, despite having been established and declared
by that court, cannot entail the annulment of the contested
regulation on the ground that there is no possibility that the
administrative procedure could have led to a different result.
The debate concerning the interpretation of Article 2(7)(c) of
the Basic Regulation and of paragraph 44 of the judgment in
Nanjing Metalink played a decisive role in the administrative