Case C-398/08 P: Appeal brought on 16 September 2008 (by fax on 12 September 2008 ) by Audi AG against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 July 2008 in Case T-70/06 Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2008-09-16
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, advertising, appeal, motor vehicle industry, trade-mark law

C 301/18

EN

Official Journal of the European Union

22.11.2008

Question referred

Pleas in law and main arguments

Are the Italian regional and national provisions laying down
mandatory minimum distances between roadside petrol stations
and, in particular, Article 13 of the Regional Law of Latium,
which applies to the case before this Court and is material for
the decision in those proceedings, as well as the national frame-
work legislation (Legislative Decree No 32/1998, as subse-
quently amended and supplemented, Law No 57/2001 and
Ministerial Decree of 31 October 2001), in so far as they allow,
or in any event have not prevented provision being made, in the
exercise of
for
minimum distances between petrol stations under Article 13,
compatible with Community law, in particular Articles 43, 48,
49 and 56 of the EC Treaty and the principles of freedom of
competition and non-discrimination enshrined in that treaty, as
stated in the grounds?

the regulatory powers of

the Italian State,

Appeal brought on 16 September 2008 (by fax on
12 September 2008) by Audi AG against the judgment of
the Court of First Instance (Fourth Chamber) delivered on
9 July 2008 in Case T-70/06 Audi AG v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F.
Schiwek, Rechtsanwälte)

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

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark: The Court
of First Instance — like the Board of Appeal — did not state
sufficient reasons regarding the relevant public in each case. In
view of the large number of goods and services to be covered
by the trade mark applied for, it was not permissible to take a
uniform view across the board.

Further, the Court of First Instance applied too strict a standard
when considering distinctive character. The Court of First
Instance disregarded the fact
that even so-called advertising
slogans are essentially word marks. It applied noticeably stricter
requirements to establish distinctive character solely on the basis
in its view the trade mark applied for,
of
‘Vorsprung durch Technik’, was an advertising slogan.

the fact

that

Breach of Article 63 of Council Regulation No 40/94: The
Court of First Instance confined itself to reviewing the decision
of the Board of Appeal. New facts put forward by the parties,
which were not already covered by the decision of the Board of
Appeal were neither admitted nor taken into account in the
decision. However, when considering distinctive character, the
Court of First Instance referred to a document which was only
submitted by the defendant with the defence. The finding that
the trade mark applied for,
‘Vorsprung durch Technik’, was
devoid of distinctive character was based essentially on the
content of that document and the appraisal of that content by
the Court of First Instance.

Appeal brought on 15 September 2008 (by fax on
12 September 2008) by the Commission of the European
Communities against the judgment delivered by the Court
of First Instance (Third Chamber, Extended Composition)
on 1 July 2008 in Case T-266/02 Deutsche Post AG,
supported by the Federal Republic of Germany v
Commission of the European Communities, supported by
Bundesverband Internationaler Express- und Kurierdienste
eV (BIEK) and UPS Europe NV/SA

(Case C-399/08 P)

(2008/C 301/33)

Language of the case: German

Form of order sought

— Set aside the judgment under appeal;

— Set aside the decision of the Second Board of Appeal of the
Office
Internal Market of
16 December 2005 in Case R 237/2005-2 in so far as it
dismisses in part the appeal against the examiner's decision;

for Harmonisation in the

Parties

— Order the Office for Harmonisation in the Internal Market
to pay the costs of proceedings before the Court of Justice,
before the Court of First Instance and before the Board of
Appeal.

Appellant: Commission of the European Communities (repre-
sented by V. Kreuschitz, J. Flett and B. Martenczuk, acting as
Agents)