Case C-495/07: Judgment of the Court (First Chamber) of 15 January 2009 (reference for a preliminary ruling from the Oberster Patent- und Markensenat — Austria) — Silberquelle GmbH v Maselli Strickmode GmbH (Trade marks — Directive 89/104/EEC — Articles 10 and 12 — Revocation — Concept of genuine use of a mark — Affixing the mark to promotional items — Distribution of such items free of charge to the purchasers of goods sold by the mark's proprietor)
Date: 2009-01-15
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, trade mark, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/3

Judgment of the Court (Second Chamber) of 15 January
2009 (reference
a preliminary ruling from the
Bayerischer Verwaltungsgerichtshof — Germany) —
M-K Europa GmbH & Co. KG v Stadt Regensburg

for

requirement relating to human consumption to a significant degree
within the European Community, within the meaning
of
Article 1(2) of that regulation, is not sufficient for that regulation
not to apply to that product.

(Case C-383/07) (1)

(Reference for a preliminary ruling — Regulation (EC)
No 258/97 — Article 1(1) to (3) — Novel foods and novel
food ingredients)

4. Experience regarding the safety of a food product existing exclusively
the product
outside Europe is not
food products ‘having a
concerned falls within the category of
history of safe food use’ within the meaning of Article 1(2)(e) of
Regulation No 258/97.

to establish that

sufficient

(2009/C 55/03)

Language of the case: German

5. It is not incumbent upon an undertaking to initiate the procedure

laid down in Article 13 of Regulation No 258/97.

(1) OJ C 283, 24.11.2007.

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: M-K Europa GmbH & Co. KG

Defendant: Stadt Regensburg

Joined party: Landesanwaltschaft Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungs-
gerichtshof — Interpretation of Article 1(2)(d) and (e) and (3) of
Regulation (EC) No 258/97 of the European Parliament and of
the Council of 27 January 1997 concerning novel foods and
novel food ingredients (OJ 1997 L 43, p. 1) — Novel character
of a food marketed in a limited geographical area of the Com-
munity (San Marino) shortly before the entry into force of the
regulation when the food is manufactured from ingredients the
habitual human consumption of which is disputed or can be
established only by reference to a non-member country (Japan)
— Obligation to subject a food to a control

Judgment of the Court (First Chamber) of 15 January 2009
(reference for a preliminary ruling from the Oberster
Patent- und Markensenat — Austria) — Silberquelle GmbH
v Maselli Strickmode GmbH

(Case C-495/07) (1)

(Trade marks — Directive 89/104/EEC — Articles 10 and 12
— Revocation — Concept of ‘genuine use’ of a mark —
Affixing the mark to promotional items — Distribution of
such items free of charge to the purchasers of goods sold by
the mark's proprietor)

(2009/C 55/04)

Language of the case: German

Operative part of the judgment

Oberster Patent- und Markensenat

Referring court

1. Importation of a food product into San Marino before the entry
into force of Regulation (EC) No 258/97 of
the European
Parliament and of the Council of 27 January 1997 concerning
novel foods and novel food ingredients is not a relevant factor for
assessing whether that product meets the requirement relating to
human consumption to a significant degree within the European
Community within the meaning of Article 1(2) of that regulation.

requirement

2. The fact that all the individual ingredients of a food product meet
the
laid down in Article 1(2) of Regulation
No 258/97, or have a safe history, cannot be regarded as sufficient
for that regulation not to apply to the food product concerned. In
order to decide whether that food product should be classified as a
novel
food within the meaning of Regulation No 258/97, the
competent national authority must proceed on a case-by-case basis,
taking into account all the characteristics of the food product and
of the production process.

3. The fact that all of the algae contained in a food product within
the meaning of Article 1(2)(d) of Regulation No 258/97 meet the

Parties to the main proceedings

Applicant: Silberquelle GmbH

Defendant: Maselli Strickmode GmbH

Re:

Reference for a preliminary ruling — Oberster Patent- und
Markensenat — Interpretation of Articles 10(1) and 12(1) of
the First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1) — Revocation of the rights of the
proprietor of the trade mark — Concept of genuine use of the
trade mark — Goods (non-alcoholic drink) being given out as
free gifts on the occasion of the sale of other goods (textiles)

C 55/4

EN

Official Journal of the European Union

7.3.2009

Operative part of the judgment

Operative part of the judgment

Articles 10(1) and 12(1) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member States
relating to trade marks must be interpreted as meaning that, where the
proprietor of a mark affixes that mark to items that it gives, free of
charge, to purchasers of its goods, it does not make genuine use of that
mark in respect of the class covering those items.

(1) OJ C 22, 26.1.2008.

1. The common system of value added tax, as defined in the first and
second paragraphs of Article 2 of First Council Directive
67/227/EEC of 11 April 1967 on the harmonisation of legisla-
tion of Member States concerning turnover taxes and in Articles 2
and 10(1)(a) and (2) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment, as amended by Council
Directive 2004/66/EC of 26 April 2004, does not preclude a
Member State from providing in its legislation for an administrative
penalty which may be imposed on persons liable to value added
tax, such as the ‘additional tax’ provided for in Article 109(5) and
(6) of the Ustawa o podatku od towarów i usług (Law on the taxa-
tion of goods and services) of 11 March 2004.

Judgment of the Court (Second Chamber) of 15 January
2009 (reference
a preliminary ruling from the
Naczelny Sąd Administracyjny — Republic of Poland) —
K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy

for

2. Provisions such as those in Article 109(5) and (6) of the Law on
the taxation of goods and services of 11 March 2004 do not
constitute ‘special measures for derogation’
for preventing certain
types of
tax evasion or avoidance within the meaning of
Article 27(1) of Sixth Directive 77/388, as amended.

(Case C-502/07) (1)

(VAT — Irregularities in the tax declaration submitted by a
taxable person — Additional tax)

3. Article 33 of Sixth Directive 77/388, as amended, does not
preclude
in
Article 109(5) and (6) of the Law on the taxation of goods and
services of 11 March 2004.

the maintenance

of provisions

such as

those

(2009/C 55/05)

(1) OJ C 22, 26.1.2008.

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: K-1 sp. z o.o.

Defendant: Dyrektor Izby Skarbowej w Bydgoszczy

Re:

Reference for a preliminary ruling — Naczelny Sąd Administra-
cyjny (Poland) — Interpretation of paragraphs one and two of
Article 2 of First Council Directive 67/227/EEC of 11 April
legislation of Member States
1967 on the harmonisation of
concerning turnover taxes (OJ, English Special Edition 1967,
p. 14) and Articles 2, 10(1)(a), 10(2), 27(1) and 33 of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmoni-
sation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
assessment
legislation
(OJ 1977 L 145, p. 1) — National
imposing an additional
tax liability where irregularities are
established in the taxable person's VAT declaration

Judgment of the Court (Seventh Chamber) of 15 January
the European Communities v
2009 — Commission of

Italian Republic

(Case C-539/07) (1)

(Failure of a Member State to fulfil obligations — Directive
2002/22/EC — Article 26(3) — Single European emergency
call number — Caller location information — Availability to
the authorities handling emergencies — Failure to transpose
within the prescribed period)

(2009/C 55/06)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant:
Italian Republic (represented by:
Agent, and S. Fiorentino, avvocato dello Stato)

I. M. Braguglia,