Case C-559/08 P: Appeal brought on 9 February 2009 by Deepak Rajani (Dear!Net Online) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 26 November 2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2009-02-09
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, fundamental rights, human rights, trade-mark law

C 82/10

EN

Official Journal of the European Union

4.4.2009

Action brought on 4 December 2008 — Commission of
the European Communities v Republic of Poland

(Case C-545/08)

(2009/C 82/18)

Language of the case: Polish

Appeal brought on 9 February 2009 by Deepak Rajani
(Dear!Net Online) against the judgment of the Court of
First Instance (Eighth Chamber) delivered on 26 November
2008 in Case T-100/06 Deepak Rajani (Dear!Net Online) v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs)

(Case C-559/08 P)

(2009/C 82/19)

Language of the case: English

Parties

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

Defendant: Republic of Poland

Parties

Form of order sought

— declare that, by regulating retail tariffs for broadband access
services without carrying out a prior market analysis, the
Republic of Poland has failed to fulfil its obligations under
Articles 16 and 17 of Directive 2002/22/EC (1) in conjunc-
tion with Articles 16 and 27 of Directive 2002/21/EC (2);

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

By regulating retail tariffs for broadband access services without
carrying out a prior market analysis, the Republic of Poland has
failed to fulfil its obligations under Articles 16 and 17 of Direc-
tive 2002/22/EC in conjunction with Articles 16 and 27 of
Directive 2002/21/EC.

First, the obligations imposed on Telekomunikacja Polska by the
President of the Urząd Komunikacji Elektronicznej, namely the
requirement of submission by the undertaking of retail tariffs
for broadband access services for approval by the national regu-
latory authority and the requirement that the tariffs are deter-
mined on the basis of the costs of providing the services, two
years after the entry into force in Poland of the binding Com-
munity provisions, constitute new obligations and not the main-
tenance in force of existing obligations.

Second, the regulatory obligations concerning retail broadband
access services imposed on Telekomunikacja Polska by the Presi-
dent of the Urząd Komunikacji Elektronicznej cannot, according
to the Commission, be regarded as transitional measures within
the meaning of Article 27 of the Framework Directive, since
Article 17 of Directive 98/10/EC, mentioned in Article 27,
concerns only tariffs for the use of the fixed public telephone
network and fixed public telephone services.

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
and services
(Universal Service Directive), OJ 2002 L 108, p. 51.

the European Parliament and of

communications networks

(2) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services (Framework Direc-
tive), OJ 2002 L 108, p. 33.

the European Parliament and of

Appellant: Deepak Rajani (Dear!Net Online) (represented by: A.
Kockläuner, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Artoz-Papier AG

Form of order sought

— Set aside in whole the Decision of the Court of First Instance

dated 26 November 2008, Case T-l00/06.

— Order OHIM to pay the costs of the proceedings before the

Court of Justice.

Pleas in law and main arguments

The appellant submits that the contested judgment should be
annulled on the following grounds:

— the Court of First Instance, when rejecting the first plea in
law, misinterpreted Article 43 Section 2 and Section 3 of
the Community Trademark Regulation (CTMR) in conjunc-
tion with Article 4 Section 1 of the Madrid Agreement;

— the Court of First Instance, when rejecting the first plea in
law, infringed Article 6 of the Treaty on the European Union
(Consolidated Version) as well as Article 6 in connection
with Article 14 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR);

— the Court of First Instance, when rejecting the first plea in
in

infringed Article 10 of Directive 89/104 (EC) (1)

law,
conjunction with Article 1 of Directive 89/104 (EC);

— the Court of First Instance, when rejecting the second plea
taking into
infringed Article 79 CTMR by not

in law,
account that the opponent acted in bad faith;

— the Court of First Instance, when rejecting the second plea
in law, wrongly viewed the trademarks at issue as confus-
ingly similar and thus,
infringed Article 8 Section 1 b)
CTMR;

— the Court of First Instance, when rejecting the second plea
in law, infringed Article 135 Section 4 of the Rules of Proce-
dure of
taking into
account the supportive evidence as annexes to the court
action before it;

the Court of First

Instance by not

4.4.2009

EN

Official Journal of the European Union

C 82/11

— the Court of First Instance, when rejecting the second plea
in law,
infringed Articles 49 and 50 in conjunction with
Article 220 of the Treaty on European Union (Consolidated
Version);

— the Court of First Instance, when rejecting the second plea
in law, did not take into account that OHIM misused their
power.

(1) First Council Directive 89/104/EEC of 21 December 1988 to approx-
imate the laws of the Member States relating to trade marks (OJ L 40,
p. 1).

Appeal brought on 8 January 2009 by Gerasimos
Potamianos against the judgment delivered on 15 October
2008 in Case T-160/04 Potamianos v Commission

(Case C-4/09 P)

(2009/C 82/21)

Language of the case: French

Reference for a preliminary ruling from the Hof van
beroep te Gent (Belgium) lodged on 8 January 2009 —
Erotic Center BVBA v Belgian State

(Case C-3/09)

(2009/C 82/20)

Language of the case: Dutch

Referring court

Hof van beroep te Gent

Parties to the main proceedings

Applicant: Erotic Center BVBA

Defendant: Belgian State

Question referred

Should a cubicle consisting of a lockable space where there is
room for only one person and where this person can watch
films on a television screen for payment, where this person
personally starts the film projection by inserting a coin and has
a choice of different films, and during the time paid for can
continually modify his/her choice of projected films, be regarded
as a ‘cinema’ as referred to in the Sixth Council Directive
No 77/388/EEC (1) of 17 May 1977, Annex H, Category 7
(subsequently: Annex
III, No 7, of Council Directive
2006/112/EC (2) of 28 November 2006)?

(1) Sixth Council Directive 77/388/EEC on the harmonisation of the
laws of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment (OJ 1977
L 145, p. 1).

(2) Council Directive 2006/112/EC on the common system of value

added tax (OJ 2006 L 347, p. 1).

Parties

Appellant: Gerasimos Potamianos (represented by: S. Orlandi, A.
Coolen, J.-N.Louis and E. Marchal, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul all the provisions of the judgment of the Court of
First Instance (Seventh Chamber) of 15 October 2008 in
Case T-160/04 Potamianos v Commission, by which the Court
of First Instance dismissed in its entirety the appellant's
action of 26 April 2004 against
the
authority empowered to conclude contracts of employment
(AECE) not to extend his contract as a temporary agent;

the decision of

— annul the decision of the AECE not to renew his contract as

a temporary agent;

— order the defendant to pay the costs at both instances.

Pleas in law and main arguments

By his appeal, the appellant relies on four pleas in support of
his appeal.

In accordance with the first plea, he alleges that the interpreta-
tion of the Court of First Instance that the fact that his contract
as a temporary agent was not renewed is based on reasons
related to the interests of the service is incorrect. The appellant's
hierarchy made a number of requests for his contract to be
extended. On the contrary, objective, relevant and concordant
evidence shows that the sole basis of the decision not to renew
his contract was the application of the rule prohibiting aggrega-
tion of service, which imposes a maximum limit of six years on
the employment of a temporary agent.

By his second plea, the appellant submits that the Court of First
Instance erred in law in that it considered that he had not
submitted an application for the post in question, whereas, in
good time, he had requested that his contract be extended and
reiterated that request on several occasions,
including after
publication of the vacancy notice.