Case C-323/07: Order of the Court (Seventh Chamber) of 10 April 2008 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy)) — Termoraggi SpA v Comune di Monza (Public procurement — Public service and public supply contracts — Award without call for tenders — Award by a local authority to an undertaking whose capital it controls)
Date: 2008-04-10
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, provision of services, public contract, single market, works contract

5.7.2008

EN

Official Journal of the European Union

C 171/11

Judgment of the Court (Sixth Chamber) of 15 May 2008 —
Commission of the European Communities v Kingdom of
Sweden

Order of the Court (Seventh Chamber) of 10 April 2008
(reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Lombardia (Italy)) —
Termoraggi SpA v Comune di Monza

(Case C-341/07) (1)

(Case C-323/07) (1)

(Failure of a Member State to fulfil its obligations — Enforce-
ment of intellectual property rights — Failure to transpose
within the prescribed time-limit)

(Public procurement — Public service and public supply
contracts — Award without call for tenders — Award by a
local authority to an undertaking whose capital it controls)

(2008/C 171/18)

Language of the case: Swedish

(2008/C 171/19)

Language of the case: Italian

Parties

Referring court

Applicant: Commission of the European Communities (repre-
sented by: W. Wils and P. Dejmek, Agents)

Tribunale Amministrativo Regionale per la Lombardia

Defendant: Kingdom of Sweden (represented by: A. Kruse,
Agent)

Parties

Re:

Failure of a Member State to fulfil its obligations — Failure to
have adopted the provisions necessary to comply with Directive
2004/48/EC of the European Parliament and of the Council of
29 April 2004 on the enforcement of
intellectual property
rights (OJ 2004 L 157, p. 45 and — corrigendum — OJ 2004
L 195, p. 16)

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the prescribed time-limit,
all the laws, regulations and administrative provisions necessary to
comply with Directive 2004/48/EC of the European Parliament
and of the Council of 29 April 2004 on the enforcement of intel-
lectual property rights, the Kingdom of Sweden has failed to fulfil
its obligations under that directive.

2. Orders the Kingdom of Sweden to bear the costs.

(1) OJ C 211, 8.9.2007.

Applicant: Termoraggi SpA

Defendant: Comune di Monza

Intervener: Acqua Gas Azienda Municipale (AGAM)

Re:

Reference for a preliminary ruling — Tribunale Amministrativo
Regionale per la Lombardia — Interpretation of Article 6 of
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1) — Scope — National provi-
sions attributing, outside of the procedures for the award of
public works contracts laid down in the directive, the manage-
ment of heating installations of certain buildings in a commune
to a municipal undertaking

Operative part of the order

Council Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts and
Council Directive 93/36/EEC of 14 June 1993 coordinating proce-
dures for the award of public supply contracts do not apply to a
contract concluded between a local authority and a person legally
distinct from it, where the local authority exercises over the person
concerned a control which is similar to that which it exercises over its
own departments and, at the same time, that person carries out the
essential part of its activities with the controlling local authority or
authorities.

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