Case C-205/08: 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
Date: 2008-05-19
Institutions: Court of Justice
Subjects: electrical energy, environmental impact, interpretation of the law, transport lines

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

C 209/22

EN

Official Journal of the European Union

15.8.2008

Question referred

Questions referred

Is Council Directive 85/337/EEC of 27 June 1985 on the assess-
ment of the effects of certain public and private projects on the
environment (1), as amended by the Amending Directive,
Council Directive 97/11/EC of 3 March 1997 amending Direc-
tive 85/337/EEC on the assessment of the effects of certain
public and private projects on the environment (2) and the
Public Participation Directive, Directive 2003/35/EC of
the
European Parliament and of
the Council of 26 May 2003
providing for public participation in respect of the drawing up
of certain plans and programmes relating to the environment
and amending with regard to public participation and access to
justice Council Directives 85/337/EEC and 96/61/EC (3), to be
interpreted as meaning that a Member State must provide for an
obligation to carry out an assessment in the case of types of
in particular in
projects listed in Annex I
point 20 (construction of overhead electrical power lines with a
voltage of 220 kV or more and a length of more than 15 km),
where the proposed scheme is to extend over the territory of
two or more Member States, even if the threshold giving rise to
the obligation to carry out an assessment (here, a length of
15 kilometres) is not reached or exceeded by the part of the
scheme situated on its national
is reached or
exceeded by adding the parts of the scheme proposed to be situ-
ated in a neighbouring State or States?

to the directive,

territory but

(1) OJ 1985 L 175, p. 40.
(2) OJ 1997 L 73, p. 5.
(3) OJ 2003 L 156, p. 17.

Reference for a preliminary ruling from the Panevėžio
apygardos teismas lodged on 20 May 2008 — Criminal
proceedings against Edgar Babanov

(Case C-207/08)

(2008/C 209/31)

Language of the case: Lithuanian

Referring court

Panevėžio apygardos teismas

Party to the main proceedings

Edgar Babanov

1. Is Article 265 of

the Republic of
the Criminal Code of
Lithuania, in so far as it imposes criminal liability uncondi-
tionally for the cultivation of any type of hemp without
exception, irrespective of the amount of active substance in
it, contrary to provisions of the European Union and, specifi-
cally, which ones?

2. If it is contrary to those provisions, may a court of the
Republic of Lithuania adopt a decision applying national law
(Article 265 of the Criminal Code), if the active substance in
the hemp cultivated does not exceed 0,2 %?

Appeal brought on 20 May 2008 by the Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) against the judgment delivered on 28 February
2008 by the Court of First Instance (Fifth Chamber) in
Case T-215/06, American Clothing Associates v OHIM

(Case C-208/08 P)

(2008/C 209/32)

Language of the case: French

Parties

Appellant: Office for Harmonisation in the Internal Market
(Trade Marks
Folliard-
Monguiral, Agent)

(represented by: A.

and Designs)

Other party to the proceedings: American Clothing Associates SA

Form of order sought

— set aside the judgment of the Court of First Instance of
28 February 2008 in Case T-215/06 in so far as it held that
Article 7(1)(h) of the Community Trade Mark Regulation (1)
does not apply to marks designating services;

— order American Clothing Associates SA to pay the costs.

Pleas in law and main arguments

The appellant raises a single plea in support of its appeal, alle-
ging infringement of Article 7(1)(h) of the Community Trade
Mark Regulation, read in conjunction with Article 6 ter of the
Paris Convention for the Protection of Industrial Property of
20 March 1883, as revised and amended (2). Contrary to what
the Court of First Instance held, that Article 6 ter, to which
Article 7(1)(h) of the Community Trade Mark Regulation refers,
applies without distinction to marks designating goods and
marks designating services.