Case C-553/08 P: Appeal brought on 16 December 2008 by Powerserv Personalservice GmbH, formerly Manpower Personalservice 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)
Date: 2008-12-16
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, designs and models, interpretation of the law, marketing, 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.

C 69/20

EN

Official Journal of the European Union

21.3.2009

Pleas in law and main arguments

This appeal
is brought against the judgment of the Court of
First Instance dismissing the appellant's action for annulment of
the decision of the Fourth Board of Appeal of the Office for
Harmonisation in the Internal Market (‘OHIM’) of 22 July 2005
relating to a declaration of invalidity of the Community trade
mark ‘MANPOWER’. The Court of First Instance decided that
the Community trade mark ‘MANPOWER’ is descriptive of the
designated goods and services only in the United Kingdom,
Ireland, Germany and Austria and supports the decision of the
Board of Appeal that the mark in question has acquired distinc-
tive character through use in those Member States in which it is
descriptive.

The grounds of appeal relied upon are the infringement of
Article 51(1)(a) and Article 51(2) in conjunction with Article 7
(1)(c) and Article 7(3) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark.

fact

that,

Contrary to the view taken by the Court of First Instance, the
‘MANPOWER’ sign is, as the Board of Appeal of OHIM correctly
determined, descriptive
also in the Netherlands, Sweden,
Denmark and Finland, as well as in all other Member States
belonging to the Community before 1 May 2004. If the Court
had acknowledged the
according to European
Commission figures, 47 % of relevant persons in the Com-
munity speak English, it would have had to conclude that the
word mark ‘MANPOWER’ is descriptive not only in Germany
and Austria but also in other EU States,
in particular in the
Netherlands, Sweden, Finland and Denmark. In respect of the
other States belonging to the Community before 1 May 2004
also, the Court failed to recognise that, as a result of compulsory
education in each of those Member States, the relevant section
of the population has sufficient knowledge of English to be able
to comprehend the meaning of basic vocabulary, such as the
words ‘MAN’ and ‘POWER’, and thus also to recognise that the
word ‘MANPOWER’ is descriptive of the goods and services of
the trade mark proprietor. However, not only does the Court
fail to give any reasons for declining to attribute even a basic
knowledge of the English language to people outside the United
Kingdom and Ireland, but it even contradicts its own case-law
to date, according to which the population outside the United
Kingdom and Ireland is acknowledged to have a certain basic
knowledge of
the English language in connection with the
perception of a mark.

In connection with proof of distinctive character acquired
through use, the Court erred in law in so far as it extended the
relevant public by comparison with the decision of the Board of
Appeal without reassessing the evidence submitted in respect of
distinctive character acquired. Even if the Court is deemed to
have decided correctly that proof of reputation was required to
be submitted only in relation to the United Kingdom, Ireland,
Germany and Austria, it should, in view of the extended public,
have annulled the decision of
in that
respect and referred the case back to the Board of Appeal. The
Court also erred in law in confirming the Board of Appeal's

the Board of Appeal

view regarding a spillover effect from the United Kingdom to
Ireland so far as concerns any reputation of the mark at issue,
even though no assumption can be made as to the spillover of
the reputation of a mark from one Member State to another or
from one product or service to another.

Reference for a preliminary ruling from the Bundes-
verwaltungsgericht
lodged on 19 December
2008 — Müller Fleisch GmbH v Land Baden-Württemberg

(Germany)

(Case C-562/08)

(2009/C 69/36)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Müller Fleisch GmbH

Defendant: Land Baden-Württemberg

Interested party: Vertreter des Bundesinteresses beim Bundesver-
waltungsgericht

Question referred

Is Article 6(1) of,
in conjunction with Annex III, Chapter A,
Part I to, Regulation (EC) No 999/2001 (1), as amended by
Commission Regulation (EC) No 1248/2001 (2) of 22 June
2001, to be interpreted as precluding the expansion of manda-
tory testing to all bovine animals over 24 months of age, as
established by the BSE-Untersuchungsverordnung (German
Regulation on BSE testing) of 1 December 2000 (BGBl
I,
p. 1659), amended by the Regulation of 25 January 2001
(BGBl I, p. 164)?

(1) Regulation (EC) No 999/2001 of the European Parliament and of the
Council of 22 May 2001 laying down rules for the prevention,
control and eradication of certain transmissible spongiform encepha-
lopathies (OJ 2001 L 147, p. 1).

(2) Commission Regulation (EC) No 1248/2001 of 22 June 2001
amending Annexes III, X and XI to Regulation (EC) No 999/2001 of
the European Parliament and of the Council as regards epidemio-
surveillance and testing of transmissible spongiform encephalopa-
thies (OJ 2001 L 173, p. 12).