Case C-215/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 May 2008 — E. Friz GmbH v Carsten von der Heyden
Date: 2008-05-22
Institutions: Court of Justice
Subjects: association, consumer protection, contract, cooperative, door-to-door selling, interpretation of the law, organisation, shareholding

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