Case C-579/08 P: Appeal brought on 24 December 2008 by Messer Group GmbH against the judgment of the Court of First Instance (First Chamber) delivered on 15 October 2008 in Case T-305/06 Air Products and Chemicals Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2008-12-24
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, domestic market, gas, metalworking, steel, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/17

Appeal brought on 24 December 2008 by Messer Group
GmbH against the judgment of the Court of First Instance
(First Chamber) delivered on 15 October 2008 in Case
T-305/06 Air Products and Chemicals Inc. v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM)

(Case C-579/08 P)

(2009/C 55/27)

Language of the case: English

Reference for a preliminary ruling from VAT and Duties
Tribunal, London (United Kingdom) made on 29 December
2008 — EMI Group Ltd v The Commissioners for Her
Majesty's Revenue & Customs

(Case C-581/08)

(2009/C 55/28)

Language of the case: English

Parties

Appellant: Messer Group GmbH (represented by: W. Graf v.
Schwerin and J. Schmidt, Attorneys at law)

Other parties to the proceedings: Air Products and Chemicals Inc.,
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM)

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: EMI Group Ltd

Form of order sought

The appellant claims that the Court should:

Defendant: The Commissioners for Her Majesty's Revenue &
Customs

— Set aside the judgment of the Court of First Instance of
15 October 2008 in joined cases T-305/06, T-306/06 and
T-307/06 and dismiss the action

Questions referred

— Order the applicant to pay the costs, including those of the

appellant and intervener,

(a) How is the last sentence of Article 5.6 of the Sixth Direc-
tive (1) to be interpreted in the context of the circumstances
of the present case?

alternatively,

— Set aside the judgment of the Court of First Instance of
15 October 2008 in joined cases T-305/06, T-306/06 and
T-307/06;

— Refer the case back to the Court of First Instance;

— Reserve the costs.

Pleas in law and main arguments

The applicant submits that the Court of First Instance failed to
apply correctly the criteria laid down for the proper implemen-
tation of Article 8(1)(b) of Regulation (EC) No 40/94 (1).

(b) In particular, what are the essential characteristics of a
sentence of

the last

‘sample’ within the meaning of
Article 5.6 of the Sixth Directive?

(c) Is a Member State permitted to limit the interpretation of
in the last sentence of Article 5.6 of the Sixth

‘sample’
Directive to-

(i) an industrial sample in a form not ordinarily available
for sale to the public given to an actual or potential
customer of the business (until 1993),

(ii) only one, or only the first of a number of samples given
by the same person to the same recipient where those
samples are identical or do not differ in any material
respect from each other (from 1993)?

Furthermore the applicant submits that the contested decision
of the Court of First Instance is based on a substantive inaccu-
racy in its findings with respect to the determination of the rele-
vant public.

(d) Is a Member State permitted to limit the interpretation of
‘gifts of small value’ in the last sentence of Article 5.6 of the
Sixth Directive in such a way as to exclude-

(1) Council Regulation (EC) No 40/94 of 20 December 2003 on the

Community trade mark (OJ L 11, p. 1).

(i) a gift of goods forming part of a series or succession of
gifts made to the same person from time to time (to
October 2003),

(ii) any business gifts made to the same person in any
12-month period where the total cost exceeds £50
(October 2003 onwards)?