Case C-408/08 P: Appeal brought on 22 September 2008 by Lancôme parfums et beauté & Cie SNC against the judgment of the Court of First Instance (Second Chamber) delivered on 8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS Hasche Sigle
Date: 2008-09-22
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, cosmetics industry, trade-mark law

10.1.2009

EN

Official Journal of the European Union

C 6/9

Judgment of the Court (Sixth Chamber) of 20 November
the European Communities v
2008 — Commission of

Kingdom of Spain

(Case C-94/08) (1)

Appeal brought on 22 September 2008 by Lancôme
parfums et beauté & Cie SNC against the judgment of the
Court of First Instance (Second Chamber) delivered on
8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS
Hasche Sigle

(Failure of a Member State to fulfil its obligations — Posts of
ship's captain and chief mate — Nationality clause)

(2009/C 6/15)

Language of the case: Spain

Parties

(Case C-408/08 P)

(2009/C 6/16)

Language of the case: French

Parties

Appellant: Lancôme parfums et beauté & Cie SNC (represented
by: A. von Mühlendahl, Rechtsanwalt)

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and L. Lozano Palacios, acting as Agents)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), CMS Hasche Sigle

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz,
Agent)

Re:

Failure of Member State to fulfil its obligations — Infringement
of Article 39 EC — Requirement of Spanish nationality for
persons occupying the posts of captain and chief mate on
certain ships flying the Spanish flag — Incompatibility with
Community law.

Operative part of the judgment

The Court:

1. Declares that in requiring in its legislation Spanish nationality for
persons occupying the posts of ship's captain and chief mate of all
merchant ships flying the Spanish flag other than merchant ships
with a gross tonnage less than 100 GT, which carry cargo or fewer
than 100 passengers and operate exclusively between ports or
points situated in areas in which the Kingdom of Spain has sover-
eignty, sovereign rights or jurisdiction, the Kingdom of Spain has
failed to fulfil its obligations under Community law and, in particu-
lar, under Article 39 EC;

2. Orders the Kingdom of Spain to pay the costs.

(1) OJ C 107, 26.4.2008.

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of 8 July

2008 in Case T-160/07;

— dismiss, as unfounded, the appeal against the decision of the
Office's Cancellation Division of 21 December 2006 in Case
892 C concerning the registration of the Community trade
mark 2965804 COLOR EDITION, on grounds of the appli-
cant having no right to bring an action or, alternatively, on
account of there being no grounds for absolute refusal;

— order the Office to pay the costs incurred in the proceedings
before the Court of First Instance and before the Court of
Justice;

— order CMS Hasche Sigle to pay the costs incurred in the

proceedings before the Office's Board of Appeal.

Pleas in law and main arguments

The appellant advances two grounds of appeal in support of its
appeal.

By its first ground, which has two branches, it submits that the
Court of First Instance erred in law in its interpretation of
Article 55(1)(a) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark (1).

The error consists in the confirmation of the capacity to bring
proceedings granted to the law firm CMS Hasche Sigle in the
proceedings brought before the Office for Harmonisation in the
Internal Market (Trade Marks and Designs), then before the

C 6/10

EN

Official Journal of the European Union

10.1.2009

Court of First Instance. That party had not in fact demonstrated
that it had an actual or potential economic interest which, in
itself, might warrant a law firm, acting on its own behalf,
having the capacity to bring legal proceedings for a declaration
of the invalidity of a trade mark for cosmetics. Community law
does not recognise actions brought in the absence of a private
individual or economic interest (actio popularis).

According to the appellant, to concede that a lawyer, acting on
its own behalf, may bring an application for removal from the
register of a trade mark is, on any view, incompatible with the
professional profile of a lawyer, as a member of the legal profes-
sion.

as

descriptive

By its second plea, the appellant challenges the finding of the
Court of First Instance that the trade mark COLOR EDITION is
under
falls
consequently
and
perceived
Article 7(1)(c) of Regulation No 40/94. That
interpretation
conflicts with the Court's case-law relating to the constituent
elements of the concept of a descriptive mark. Being able to
infer from a trade mark the protected goods and their character-
istics is not an adequate test. It is necessary to ascertain whether
the chosen terms,
taken individually as well as jointly, are
known and usually employed in the everyday language of the
relevant public.

(1) OJ 1994 L 11, p. 1.

Action brought on 6 October 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-442/08)

(2009/C 6/17)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Caeiros and B. Kotschy, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

— Declare that the Federal Republic of Germany has infringed
its obligations under Articles 2, 6, 9, 10 and 11 of Council
Regulation (EEC, Euratom) No 1552/89 of 29 May 1989

implementing Decision 88/376/EEC, Euratom on the system
of the Communities' own resources (1) or, as the case may
be, of Council Regulation (EC, Euratom) No 1150/2000 of
22 May 2000 implementing Decision 94/728/EC, Euratom
on the system of the Communities' own resources (2), by

— allowing tariff claims to become time-barred, irrespective
of the receipt of a mutual assistance sheet, and making a
late entry in the accounts of the own resources owed in
this connection;

— refusing to pay the accrued default interest;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

From 1994 onwards, motor vehicles
from Hungary were
imported into Germany within the framework of the preferen-
tial tariff treatment laid down in the EC-Hungary Europe Agree-
ment. By way of a mutual assistance sheet of 26 June 1998, the
European Anti-Fraud Office (OLAF) officially informed the
Member States that, at the end of their revision, the Hungarian
authorities revoked the declarations of origin for 58 006 vehi-
cles (including 19 123 vehicles for Germany). By way of a letter
of which the English version was delivered to the German
authorities on 13 July 1998 and the German translation on
18 August 1998, OLAF forwarded the documents and files
forming part of that mutual assistance sheet, including the letter
of 26 May 1998, by which the Hungarian authorities informed
OLAF of the results of the revision and pointed out that the
Hungarian manufacturer had brought an action before a
Hungarian court against the decisions of the Hungarian authori-
ties. By way of a further mutual assistance sheet of 27 October
1999, OLAF informed the Member States of the outcome of
those proceedings. As a result of
the
declarations of origin that became necessary following the judg-
ment of the Hungarian court, declarations of origin for 30 771
vehicles remained revoked on the ground of invalidity.

the re-assessment of

The results of a Commission mission in Germany regarding the
control of own resources and information provided by the
German authorities showed that the German authorities allowed
entitlements in the amount of EUR 408 735,35 for the import
of motor vehicles whose declarations of origin remained
revoked even after the re-assessment following the judgment of
the Hungarian court,
to become time-barred. Following a
request by the Commission, the own resources owed for those
time-barred tariff claims were made available by the German
in other words, after the
authorities on 31 October 2005,
in Regulation
expiry of
No 1552/89 (or, as the case may be, Regulation No 1150/2000);
however, the German authorities refused to pay default interest
in respect of the late entry of those own resources.

time-period provided

the

for