Case C-239/08: Judgment of the Court (Fifth Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directive 2006/100/EC — Free movement of persons — Amendment of certain directives by reason of the accession of the Republic of Bulgaria and Romania to the European Union — Failure to transcribe within the prescribed period)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: Belgium, Bulgaria, European Commission, Romania, accession to the European Union, action for failure to fulfil an obligation, free movement of persons, national implementing measure

C 32/10

EN

Official Journal of the European Union

7.2.2009

Judgment of the Court (Fifth Chamber) of 11 December
2008 — Gateway, Inc. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Fujitsu Siemens
Computers GmbH

(Case C-57/08 P) (1)

(Appeal — Community trade mark — Regulation (EC)
No 40/94 — Article 8(1)(b) and (5) — Earlier marks
including the word sign ‘GATEWAY’ — Word sign ‘ACTIVY
Media Gateway’ — Absence of similarity of the signs — Lack
of likelihood of confusion — Taking into account of the
renown of earlier marks when carrying out a global assess-
ment of opposing signs)

(2009/C 32/16)

Language of the case: English

Judgment of the Court (Fifth Chamber) of 11 December
the European Communities v
2008 — Commission of

Kingdom of Belgium

(Case C-239/08) (1)

(Failure of a Member State to fulfil its obligations — Direc-
tive 2006/100/EC — Free movement of persons — Amend-
ment of certain directives by reason of the accession of the
Republic of Bulgaria and Romania to the European Union —
Failure to transcribe within the prescribed period)

(2009/C 32/17)

Language of the case: French

Parties

Parties

Appellant: Gateway, Inc. (represented by: C.R. Jones, Solicitor)

Applicant: Commission of the European Communities (repre-
sented by: C. Huvelin, acting as Agent)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: A.
Folliard-Monguiral, acting as Agent), Fujitsu Siemens Computers
GmbH

Defendant: Kingdom of Belgium (represented by: D. Haven,
Agent)

Re:

Re:

Appeal against the judgment of the Court of First Instance (Fifth
Chamber) of 27 November 2007 in Case T-434/05 Gateway, Inc.
v OHIM by which the Court of First Instance dismissed an
action for annulment brought by the proprietor of the Com-
munity and national word and figurative marks containing the
word element ‘GATEWAY’ in respect of goods in Classes 9, 16,
35, 36, 37 and 38 against the decision of the First Board of
Appeal of the Office for Harmonisation in the Internal Market
(OHIM) of 14 September 2005 in Case R 1068/2004+1
the
dismissing the appeal brought by the appellant against
Opposition Division's decision, which rejected the opposition
brought by the appellant against the application for registration
of the word mark ‘ACTIVY Media Gateway’ in respect of goods
in Classes 9, 35, 38 and 42

Operative part of the judgment

The Court:

1. Dismisses the appeal;

Failure of a Member State to fulfil its obligations — Failure to
adopt or communicate, within the prescribed time-limit, the
measures necessary
comply with Council Directive
2006/100/EC of 20 November 2006 amending certain direc-
tives in the field of freedom of movement of persons, by reason
of the accession of Bulgaria and Romania (OJ 2006 L 363,
p. 141).

to

Operative part of the judgment

The Court:

1. Declares that, by failing to adopt, within the prescribed time-limit,
all the laws, regulations and administrative provisions necessary to
comply with Council Directive 2006/100/EC of 20 November
2006 amending certain Directives in the field of freedom of move-
ment of persons, by reason of
the accession of Bulgaria and
Romania, the Kingdom of Belgium has failed to fulfil its obliga-
tions under Article 2 of that directive;

2. Orders Gateway, Inc. to pay the costs.

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

(1) OJ C 171, 5.7.2008.

(1) OJ C 183, 19.7.2008.