Source: EURLEX
Language: en
Format: md

C 70/14 EN Official Journal of the European Union 22.3.2003

_Pleas in law and main arguments_

Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 10 July 2001 without Ireland having enacted the
provisions necessary to comply with the directive referred to
in the conclusions of the Commission.

( [1] ) OJ L 175, 10.07.1999, p. 43.

**Appeal brought on 3 February 2003 by BioID AG, in**
**judicial liquidation, against the judgment delivered on**
**5 December 2002 by the Second Chamber of the Court**
**of First Instance of the European Communities in Case**
**T-91/01 between BioID AG, in judicial liquidation, and**
**the Office for Harmonisation in the Internal Market**
**(Trade Marks and Designs)**

**(Case C-37/03 P)**

(2003/C 70/23)

An appeal against the judgment delivered on 5 December
2002 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-91/01 between BioID
AG, in judicial liquidation, and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) was brought
before the Court of Justice of the European Communities
on 3 February 2003 by BioID AG, in judicial liquidation,
represented by Dr Axel Nordemann, Rechtsanwalt, Boehmert
& Boehmert, Meinekestr. 26, D-10719 Berlin, with an address
for service in Luxembourg.

The appellant claims that the Court should:

1. set aside the judgment of the Court of First Instance of
5 December 2002 in Case T-91/01 BioID AG v Office for
Harmonisation in the Internal Market (OHIM) ( [1] );

2. annul the decision of the Second Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 20 February 2001 in Appeal
R 538/1999-2;

3. order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs of the
proceedings both at first instance and on appeal.

_Pleas and main arguments_

—
Incorrect, overly broad interpretation of the absolute
ground for refusal set out in Article 7(1)(b) of Council
Regulation No 40/94 on the Community trade mark:
from the point of view of the average consumer, the
mark applied for serves to identify the goods and services
in respect of which registration is sought as originating
from the appellant and, accordingly, to distinguish those
goods and services from those of other undertakings.
Considered as a whole, the sign consisting of a word
element and additional graphic elements undoubtedly
performs the function of providing a guarantee that all
the goods or services bearing it have originated under the
control of a single undertaking which is responsible for
their quality.

—
Had the Court of First Instance correctly interpreted the
absolute ground for refusal set out in Article 7(1)(b), it
would have had to examine the further plea alleging
infringement of Article 7(1)(c) and to reach the conclusion, on the basis of its findings of fact, that the mark
applied for was also not caught by the absolute ground
for refusal set out therein which applies where the signs
or indications of which a mark consists are of an
exclusively descriptive nature. In that regard, the Court of
Justice may, since the state of the proceedings so permits,
give final judgment as provided by Article 54 of the
Statute of the Court.

( [1] ) Not yet published in the Official Journal of the European
Communities.

**Action brought on 3 February 2003 by the Commission**
**of the European Communities against the Kingdom of**
**Belgium**

**(Case C-38/03)**

(2003/C 70/24)

An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 3 February 2003 by the Commission of the European
Communities, represented by L. Ström F. Simonetti, acting as
Agents.