Case C-208/08 P: 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
Date: 2008-05-20
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, clothing industry, textile industry, trade-mark law

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.

15.8.2008

EN

Official Journal of the European Union

C 209/23

In this respect, the appellant states, first, that the Court of First
Instance erred in law in interpreting Article 6 ter of the Paris
Convention literally and out of context, without taking account
of the spirit of that provision and of the Convention in general,
which, since its review carried out by the Lisbon Act of
31 October 1958, requires extending all the provisions relating
to trade marks to service marks, with the exception of certain
provisions which are not applicable in the present case.

The appellant claims, second, that the Community legislature
itself contests that it is necessary to draw a distinction between
trade marks for goods and trade marks for services since
Article 29 of the Community Trade Mark Regulation, which
transposes Article 4 A of the Paris Convention, relating to rights
of priority, mentions explicitly the services covered by a trade
mark application.

The appellant observes third that, contrary to what the Court of
First Instance held in the judgment under appeal, Article 16 of
the Trademark Law Treaty, adopted at Geneva on 27 October
1994, must be interpreted as meaning that it clarifies the field
the Paris Convention, without however
of application of
extending its field of application to situations that that conven-
tion excludes in its current wording.

Justice itself admitted, at

Lastly, the appellant states that, in a recent judgment, the Court
of
the Paris
Convention requires equal treatment as between trade marks for
goods and trade marks for services.

implicitly,

least

that

(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.

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 22 May 2008 — E. Friz
GmbH v Carsten von der Heyden

(Case C-215/08)

(2008/C 209/33)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: E. Friz GmbH

Questions referred

1. Must the first sentence of Article 1(1) of Council Directive
85/577/EEC of 20 December 1985 to protect the consumer
in respect of contracts negotiated away from business
premises (1) be interpreted as meaning that it applies to a
consumer's entry into a partnership, commercial partnership,
association or cooperative if the principal purpose of joining
is not to become a member of the partnership, association
or cooperative but — as frequently applies in particular in
relation to participation in a closed-end real estate fund —
participation as a member is simply another means of capital
investment or of obtaining services which are typically the
object of reciprocal contracts?

2. Must Article 5(2) of Council Directive 85/577/EEC of
20 December 1985 to protect the consumer in respect of
contracts negotiated away from business premises be inter-
preted as meaning that
it precludes a legal effect under
national (judge-made) law within the meaning of Article 7 of
the directive which states that, where a consumer becomes a
member in a doorstep-selling situation, the consequence is
that,
in the event that the membership is cancelled, the
consumer cancelling the membership has a claim against the
partnership, association or cooperative, calculated at the time
that the cancellation takes effect, to his severance balance,
that is, a sum corresponding to the value of his interest in
the partnership, association or cooperative at the time of
retirement from membership, with the (possible) effect that,
as a result of the economic development of the partnership,
association or cooperative, he either gets back less than the
value of his capital contribution or even finds himself
exposed to payment obligations which, because the severance
balance is negative, go beyond the loss of the capital contri-
bution paid?

(1) OJ L 372, 31.12.1985, p. 31.

Action brought on 22 May 2008 — Commission of the
European Communities v Ireland

(Case C-221/08)

(2008/C 209/34)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Lyal, W. Mölls, Agents)

Defendant: Carsten von der Heyden

Defendant: Ireland