Case C-48/09 P: Appeal brought on 2 February 2009 by Lego Juris A/S against the judgment of the Court of First Instance (Eighth Chamber) delivered on 12 November 2008 in Case T-270/06 Lego Juris A/S v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Other party before the Board of Appeal, intervener before the Court of First Instance Mega Brands, Inc.
Date: 2009-02-02
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, toy industry, trade-mark law

4.4.2009

EN

Official Journal of the European Union

C 82/19

conditions laying down a minimum content for dry cocoa solids
which is greater than that laid down for the use of names in
which those descriptions do not appear. The Italian legislation
makes the use of the word ‘puro’ subject simply to the presence
of cocoa butter by way of fat and there is no requirement to
comply with the higher minimum content for dry cocoa solids.
That constitutes an infringement of Article 3(5) of the directive
and is misleading for the consumer.

(1) Directive 2000/36/EC of

the
Council of 23 June 2000 relating to cocoa and chocolate products
intended for human consumption (OJ 2000 L 197, p. 19).

the European Parliament and of

(2) Directive 2000/13/EC of

the
Council of 20 March 2000 on the approximation of the laws of the
Member States relating to the labelling, presentation and advertising
of foodstuffs (OJ 2000 L 109, p. 29).

the European Parliament and of

the judgment of

the Court of First

Appeal brought on 2 February 2009 by Lego Juris A/S
against
Instance
(Eighth Chamber) delivered on 12 November 2008 in Case
T-270/06 Lego Juris A/S v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Other
party before the Board of Appeal, intervener before the
Court of First Instance Mega Brands, Inc.

trade mark protection, independently of whether the criteria
of art. 7(1)(e)(ii) CTMR as defined by the Court
in the
Philips/Remington decision (2) are fulfilled or not.

b) applied the wrong criteria in the identification of the essen-
tial characteristics of a three-dimensional trade mark: and

c) applied an incorrect functionality test in that it i) did not
limit its assessment to the essential characteristics of the
trade mark at issues and, ii) did not define the appropriate
criteria for assessing whether a characteristic of a shape is
functional and, in particular, refused to take into account any
potential a lternative designs.

(1) OJ L 11, p. 1.
(2) Case C-299/99 Philips [2002] ECR I-5475.

Action brought on 4 February 2009 — Commission of the
European Communities v Ireland

(Case C-50/09)

(2009/C 82/35)

Language of the case: English

(Case C-48/09 P)

(2009/C 82/34)

Language of the case: English

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: P. Oliver, C. Clyne, J.-B. Laignelot, Agents)

Appellant: Lego Juris A/S (represented by: V. von Bomhard,
Rechtsanwältin, T. Dolde, A. Renck, Rechtsanwälte)

Defendant: Ireland

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

The applicant claims that the Court should:

Form of order sought

The appellant claim that the Court should:

— set aside the judgment of

the Court of First

Instance,

because it violates Article 71(1)(e)(ii)CTMR (1)

Pleas in law and main arguments

The appellant submits that the contested judgment infringes
art. 7(1)(e)(ii) of the Community Trade Mark Regulation. The
appellant maintains that the Court of First Instance:

— declare that by failing to transpose Article 3 of Council
Directive 85/337/EEC (1) on the assessment of the effects of
certain public and private projects on the environment as
amended;

— declare that by failing to ensure that, where Irish planning
autorities and the Environmental Protection Agency both
have decision-making powers on a project, there will be
complete fulfilment of the requirements of Articles 2, 3
and 4 of that Directive;

— declare that by excluding demolition works from the scope

of its legislation transposing that Directive,

Ireland has failed to fulfil its obligations under that Direc-
tive.

a) interpreted art. 7(1)(e)(ii) CTMR in such a way as to effec-
tively preclude any shape which performs a function from

— order Ireland to pay the costs.