Case C-550/08: Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 11 December 2008 — British American Tobacco (Germany) GmbH v Hauptzollamt Schweinfurt
Date: 2008-12-11
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, interpretation of the law, marketing, production control, trade-mark law

21.3.2009

EN

Official Journal of the European Union

C 69/19

2. If the first question is answered in the affirmative:

2. If the first question is to be answered in the negative:

Is the chance of taking part in a prize competition, which is
acquired with the purchase of a newspaper, an unfair
commercial practice within the meaning of Article 5(2) of
the Unfair Commercial Practices Directive merely because
that chance is, for at least some of those to whom the offer
the decisive reason for
is addressed, not
purchasing the newspaper?

the only, but

Must Article 15(4) of Directive 92/12/EEC be interpreted as
meaning that proof that the consignee has taken delivery of
the goods may also be provided otherwise than by means of
the accompanying document referred to in Article 18 of
Directive 92/12/EEC?

(1) OJ 1992 L 76, p. 1.

(1) OJ L 149, p. 22.

Reference for a preliminary ruling from the Finanzgericht
München (Germany)
lodged on 11 December 2008 —
British American Tobacco (Germany) GmbH v Hauptzol-
lamt Schweinfurt

Appeal brought on 16 December 2008 by Powerserv
Personalservice GmbH,
formerly Manpower Personal-
service GmbH, against the judgment of the Court of First
Instance (Fifth Chamber) delivered on 15 October 2008 in
Case T-405/05 Powerserv Personalservice GmbH v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs)

(Case C-550/08)

(2009/C 69/34)

Language of the case: German

(Case C-553/08 P)

(2009/C 69/35)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: British American Tobacco (Germany) GmbH

Defendant: Hauptzollamt Schweinfurt

Parties

Appellant: Powerserv Personalservice GmbH, formerly Manpower
Personalservice GmbH (represented by: B. Kuchar, Rechtsan-
wältin)

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

Questions referred

Form of order sought

and monitoring of

1. Must the first indent of the first subparagraph of Article 5(2)
of Council Directive 92/12/EEC of 25 February 1992 on the
general arrangements for products subject to excise duty and
such
on the holding, movement
products (1) be interpreted as meaning that non-Community
goods subject to excise duty which have been placed under
an inward processing procedure within the
terms of
Article 84(1)(a) of Regulation (EEC) No 2913/92 (Customs
Code) are to be deemed to be subject to duty-suspension
arrangements even if they are produced, under an inward
processing procedure, from goods which are not subject to
excise duty only after the importation of those goods and
therefore, in accordance with the 15th recital in the preamble
to Directive 92/12/EEC, when they are being moved there is
no need for the accompanying document referred to in
Article 18(1) of Directive 92/12/EEC to be used?

— Set aside the judgment under appeal of the Court of First
Instance of 15 October 2008 in Case T-405/05 and declare
Community trade mark No 76059 invalid in respect of all
goods and services;

— set aside the judgment under appeal of the Court of First
Instance of 15 October 2008 in Case T-405/05 inasmuch as
it relates to the failure to prove the acquired distinctive char-
acter of Community trade mark No 76059, and refer the
case back to the Court of First Instance;

— in any event, order OHIM and the proprietor of the Com-
munity trade mark to bear their own costs and to pay the
appellant's costs as regards the proceedings before the Board
of Appeal of OHIM, the Court of First Instance and the
Court of Justice.