Case C-202/08 P: Appeal brought on 16 May 2008 by American Clothing Associates SA against the judgment delivered on 28 February 2008 by the Court of First Instance (Fifth Chamber) in Case T-215/06, American Clothing Associates SA v OHIM
Date: 2008-05-16
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), clothing industry, textile industry, trade-mark law

C 209/20

EN

Official Journal of the European Union

15.8.2008

Since the present case concerns contracts of obvious cross-
border interest, in addition to the obligations under Directives
92/50/EEC and 2004/18/EC the general principles of freedom
of establishment and freedom to provide services under the EC
Treaty were also infringed by the awards that were made
without transparency.

Ambulance services, like transport services and medical services
in the context of the public ambulance service, do not fall
within the exceptions in Article 45 EC in conjunction with
Article 55 EC, under which activities which in a given Member
State are connected, even occasionally, with the exercise of offi-
cial authority are excluded, as far as that State is concerned,
from the chapter of the EC Treaty on freedom of establishment
and freedom to provide services. The exception in Article 45 EC,
which as an exception to the fundamental freedoms must be
is strictly limited to those activities which
interpreted strictly,
constitute as such a direct and specific participation in the exer-
cise of public power. The question of whether public power is
being exercised is not to be answered by reference to the public-
law nature of the activity in question; rather, what is decisive is
the possibility of making use, as against the citizen, of public
powers and powers of coercion.

The Commission is convinced that the award practice in the
field of the ambulance service could, even if foreign providers of
services take part, be designed in such a way that a comprehen-
sive,
rapid and high-quality ambulance service is ensured
throughout the country.

(1) OJ 1992 L 209, p. 1.
(2) OJ 2004 L 134, p. 114.

Appeal brought on 29 April 2008 by the Commission of
the European Communities against the judgment delivered
on 14 February 2008 in Case T-351/05, Provincia di
Imperia v Commission of the European Communities

(Case C-183/08 P)

(2008/C 209/28)

Language of the case: French

Form of order sought

— annul

the judgment of

the Court of First

Instance of

14 February 2008 in Case T-351/05;

— declare that the action brought by the Provincia di Imperia

in that case was inadmissible;

— order the Provincia di
costs in the present case.

Imperia to pay the Commission's

Pleas in law and main arguments

By its appeal, the Commission complains that the judgment
under appeal failed to apply the conditions governing the admis-
sibility of an action for annulment brought under Article 230 EC,
in particular by considering that the applicant at first instance
had an interest in bringing an action. An action for annulment
brought by a natural or legal person is only admissible in so far
as the outcome of the action is likely to produce a benefit for
the applicant. In the present case, the action brought by the
applicant is manifestly inadmissible since a judgment annulling
the contested act would, in itself, in no way produce a ‘benefit’
for that applicant. The granting of a subsidy is effectively a
concession agreed to by the Commission and a party
responding to a call for proposals consequently has no right to
such a subsidy.

Alternatively, the Commission submits that, even if the appli-
cant at first instance did have an interest in bringing an action
on the day it brought its action, that interest would in any event
have disappeared by the time the judgment under appeal was
delivered, since the entire budget set aside for the call for propo-
sals had been used up and the programming had come to an
end.

SA against

Appeal brought on 16 May 2008 by American Clothing
Associates
delivered on
the
28 February 2008 by the Court of First Instance (Fifth
Chamber) in Case T-215/06, American Clothing Associates
SA v OHIM

judgment

(Case C-202/08 P)

(2008/C 209/29)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by: D. Martin and L. Flynn, Agents)

Parties

Other party to the proceedings: Provincia di Imperia

Appellant: American Clothing Associates SA (represented by: P.
Maeyaert, N. Clarembeaux and C. De Keersmaeker, lawyers)

15.8.2008

EN

Official Journal of the European Union

C 209/21

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

work resulting from the implementation of the rules governing
heraldic art and science.

Form of order sought

— Set aside the decision of the Court of First Instance in so far
as it held that the First Board of Appeal of OHIM had not
infringed Article 7(1)(h) of
the Community Trade Mark
Regulation (1) by adopting its decision of 4 May 2006 (Case
R 1463/2005-1) in so far as it relates to the registration of
the trade mark applied for in respect of goods in Classes 18
‘Leather and imitations of leather, and goods made of these
materials and not included in other classes; animal skins;
trunks and travelling bags; umbrellas, parasols and walking
sticks; whips, harness and saddlery’ and 25 ‘Clothing, foot-
wear, headgear’;

— Order OHIM to pay the costs.

Pleas in law and main arguments

By its third argument, the appellant complains that the judg-
ment under appeal misconstrued the scope of the concept of
‘heraldic imitation’ and, in so doing, that it affirms an interpreta-
tion of the Community Trade Mark Regulation and the Paris
Convention which confers on the States concerned a virtually
absolute monopoly on signs having no heraldic characteristics
or no heraldic characteristics which are very pronounced in rela-
tion to their registration or use as an element of a trade mark.

By its fourth argument, the appellant lastly criticises the Court
of First Instance for having rejected at the outset, as irrelevant,
certain circumstances specific to the present case, such as the
nature of the heraldic characteristics whose protection is relied
on, the overall impression given by a trade mark which contains
as an element a State emblem or an imitation thereof, the
nature of the protection offered in the country of origin of the
State emblem concerned or the conditions of use of the trade
mark concerned.

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

Community trade mark (OJ 1994 L 11, p. 1).

(2) United Nations Treaty Series, Vol. 828, No 11847, p. 108.

The appellant raises a single plea in law in support of its appeal,
alleging infringement of Articles 7(1)(h) of
the Community
Trade Mark Regulation and 6ter(1)(a) of the Paris Convention
for the Protection of Intellectual Property of 20 March 1883, as
revised and amended. (2) That plea is essentially based on four
arguments.

Reference for a preliminary ruling from the Umweltsenat
(Austria) lodged on 19 May 2008 — Umweltanwalt von
Kärnten, other parties Kärnter Landesregierung, Alpe
Adria Energia SpA

By its first argument, the appellant complains that the judgment
under appeal failed to have regard to the relevance of the essen-
tial function of a State emblem when assessing the scope of
protection of an emblem. A State emblem refers to symbols of
the identity and sovereignty of a State, which are designed
according to an artistic language and a very precise science,
relating to armorial bearings. Whatever its nature, an emblem
could therefore be refused registration as a trade mark or an
element of a trade mark only if it is capable of undermining the
identity or sovereignty of a State. However, the mere reproduc-
tion of a sign similar to a State emblem displaying no, or few,
heraldic characteristics as an element of a trade mark is not
such as to affect the essential function of that emblem.

By its second argument, the appellant criticises the Court of
First Instance for having failed to have regard to the relevance of
the heraldic characteristics of a State emblem by holding that a
number of artistic interpretations of one and the same emblem
the same heraldic description are possible.
on the basis of
the Paris
According to the appellant, Article 6ter(1)(a) of
Convention and the concept of ‘imitation from a heraldic point
of view’ do not seek to protect the symbol as such, but seek to
protect a very precise artistic interpretation or a specific graphic

(Case C-205/08)

(2008/C 209/30)

Language of the case: German

Referring court

Umweltsenat

Parties to the main proceedings

Applicant: Umweltanwalt von Kärnten

Other parties: Kärnter Landesregierung, Alpe Adria Energia SpA