Source: EURLEX
Language: en
Format: md

C 84/40 EN Official Journal of the European Communities 6.4.2002

such legislation has been found to be non-compliant. It is _Pleas in law and main arguments_
untenable to think that service order No 57/2000 of 4 August
2000 issued by the authority governing harbourmasters is
capable of amending Decree No 347/94 containing the Infringement of Article 7(1)(b) of Council Regulation No 40/94
contested provisions. on the Community trade mark( [2] ). Contrary to the view of the
Court of First Instance, the mark applied for lacks distinctive
character. At the time of the application, neither the tablet
shape nor the colour combination, and especially the combiIn the Commission’s view, the Italian authorities are well aware
nation of the two, were typical for a washing powder and they
of the above considerations, as is clear from the undertaking
were certainly not technically necessary.
given several times — but so far not fulfilled — to make the
necessary amendments to Presidential Decree No 347/94 in
order to bring Italian legislation into line with Community
law. Contrary to the view taken by the Court of First Instance, there
is no reason why consumers should in principle be regarded
as less attentive when purchasing goods for everyday use;
rather, the opposite is true.

In the alternative: even if the time of registration were decisive,
the possibility cannot be ruled out that the contested trade
mark application could serve to designate the origin of the
goods, since it is prohibited, when considering the list of
goods, to rule out distinctiveness on the grounds that there
**Appeal brought on 28 November 2001 by Henkel KGaA**
may be similarities between the goods. That approach conflates
**against the judgment delivered on 19 September 2001 by**
to an unacceptable degree the issue of registrability with that
**the Second Chamber of the Court of First Instance of**
of scope of protection, or likelihood of confusion. Even where
**the European Communities in Case T-335/99, between**
a mark is confusingly similar, it is for the proprietor of the
**Henkel KGaA and the Office for Harmonization in the**
mark having priority to obtain refusal of the earlier mark
**Internal Market (Trade Marks and Designs)**
under Article 8 of Regulation 40/94.

**(Case C-456/01 P)**
( [1] ) Not yet published in the court reports.
( [2] ) OJ L 11, p. 1.
(2002/C 84/69)

An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance of
the European Communities in Case T-335/99, between Henkel
**Appeal brought on 28 November 2001 by Henkel KGaA**
KGaA and the Office for Harmonization in the Internal Market
**against the judgment delivered on 19 September 2001 by**
(Trade Marks and Designs)( [1] ), was brought before the Court of
**the Second Chamber of the Court of First Instance of**
Justice of the European Communities on 28 November
**the European Communities in Case T-336/99, between**
2001 by Henkel KGaA, represented by Rechtsanwälte Holger
**Henkel KGaA and the Office for Harmonization in the**
Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
**Internal Market (Trade Marks and Designs)**
an address for service in Luxembourg.

**(Case C-457/01 P)**

The applicant claims that the Court should:
(2002/C 84/70)

—
partially annul the judgment of the Court of First Instance
of the European Communities of 19 September 2001 in
Case T-335/999, served on 1 October 2001;
An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance of
annul the decision of the Third Board of Appeal of the
Office for Harmonisation in the Internal Market of the European Communities in Case T-335/99, between Henkel
KGaA and the Office for Harmonization in the Internal Market
21 September 1999 in Case R 71/1999-3 relating to
(Trade Marks and Designs)( [1] ), was brought before the Court of
Community trade mark application number 703 231;
Justice of the European Communities on 28 November
2001 by Henkel KGaA, represented by Rechtsanwälte Holger
— order the Office for Harmonisation in the Internal Market Friedrich Wissel and Dr. Christian Osterrieth, Düsseldorf, with
to pay the costs of the proceedings. an address for service in Luxembourg.

6.4.2002 EN Official Journal of the European Communities C 84/41

The applicant claims that the Court should: _Pleas in law and main arguments_

—
partially annul the judgment of the Court of First Instance
of the European Communities of 19 September 2001 in Article 249 EC (formerly Article 189 of the EC Treaty), which
Case T-336/999, served on 1 October 2001; provides that a directive is binding, as to the result to be
achieved, on the Member State to which it is addressed, entails
annul the decision of the Third Board of Appeal of the an obligation on the Member States to adhere to the timeOffice for Harmonisation in the Internal Market of limits for implementation laid down in directives. That time21 September 1999 in Case R 71/1999-3 relating to limit expired on 1 July 2000 before the Italian Republic had
Community trade mark application number 703 231; taken the necessary measures to comply with the directive
which is the subject of the Commission’s claims.

— order the Office for Harmonisation in the Internal Market
to pay the costs of the proceedings.

_Pleas in law and main arguments_

**Action brought on 29 November 2001 by the Com-**
The same as in Case C-456/01P.
**mission of the European Communities against Ireland**

( [1] ) Not yet published in the court reports. **(Case C-459/01)**

(2002/C 84/72)

An action against Ireland was brought before the Court of
Justice of the European Communities on 29 November 2001
**Action brought on 29 November 2001 by the Com-**
by the Commission of the European Communities, represented
**mission of the European Communities against the Italian**
by Christopher Docksey and Karen Banks, acting as agents,
**Republic**
with an address for service in Luxembourg.

**(Case C-458/01)**
The Applicant requests that the Court should:

(2002/C 84/71)
1. declare that by failing to adopt the laws, regulations
or administrative provisions necessary to comply with
European Parliament and Council Directive 95/46/EC of
24 October 1995 concerning the protection of individAn action against the Italian Republic was brought before the
uals with regard to the processing of personal data and
Court of Justice of the European Communities on 29 Novemon the free movement of such data( [1] ) and European
ber 2001 by the Commission of the European Communities,
Parliament and Council Directive 97/66/EC of 15 Decemrepresented by Chiara Cattabriga and Arnaud Bordes, acting as
ber 1997 concerning the processing of personal data and
Agents.
the protection of privacy in the telecommunications
sector( [2] ), or, in any event, by failing to inform the
Commission of those measures, Ireland has failed to fulfil
The applicant claims that the Court should:
its obligations under the said Directives, and

—
declare that by failing to adopt within the prescribed 2. order Ireland to pay the costs of this action.
period the laws, regulations and administrative provisions
necessary to comply with Council Directive 1999/90/EC
of 15 November 1999 amending Directive 90/539/EEC
on animal health conditions governing intra-Community
trade in and imports from third countries of poultry and _Pleas in law and main arguments_
hatching eggs the Italian Republic has failed to fulfil its
obligations under the EC Treaty;

Article 249 EC, under which a directive shall be binding as to

—
order the Italian Republic to pay the costs. the result to be achieved, upon each Member State, carries by