CELEX: C1997/094/20
Language: en
Date: 1997-03-22 00:00:00
Title: Reference for a preliminary ruling from the Bundes-gerichtshof by order of that court of 12 December 1996 in the case of Canon Kabushiki Kaisha v. Pathe Communications Corporation (Case C-39/97)

22 . 3 . 97              EN                     Official Journal of the European Communities                                  No C 94/ 11
Reference for a preliminary ruling from the Bundes­                               by that person, thus simply being paid in lieu of a
gerichtshof by order of that court of 12 December 1996                            benefit in kind which could in principle have been
in     the   case    of  Canon     Kabushiki     Kaisha     v. Pathe              provided by the Fund; or
                   Communications Corporation
                           (Case C-39/97)                                  ( ac ) only such benefits in the form of money as are not
                                                                                  earmarked for a specific purpose ?
                             ( 97/C 94/20 )
                                                                           Are the benefits listed below benefits in kind within the
Reference has been made to the Court of Justice of                         meaning of Article 28 of Regulation ( EEC ) No 1408/71 :
the European Communities by an order of the
Bundesgerichtshof ( Federal Court of Justice ) of                          ( ba ) only benefits in kind provided by the fund without
12 December 1996, which was received at the Court                                 expenditure by the insured person, or albeit with his
Registry on 28 January 1997, for a preliminary ruling in                          participation in the costs but otherwise financed by
the      case   of     Canon      Kabushiki     Kaisha     v.  Pathe
                                                                                  the Fund; or
Communications Corporation on the following question :
                                                                           ( bb) in addition to the direct benefits in kind mentioned at
May account be taken, when assessing the similarity of                            ( ba ), and in lieu of a benefit in kind which could in
the goods or services covered by the two marks, of the                            principle have been provided by the fund, but in the
distinctive character, in particular the reputation of the                        individual case was obtained by the insured person
mark with earlier priority ( on the date which determines                         initially at his own expense, also benefits provided in
the seniority of the later mark ), in particular in such a                        the form of money by way of a complete or partial
way that likelihood of confusion within the meaning of                            refund of those costs; or also
Article 4 ( 1 ) ( b ) of Directive 89/104/EEC ( 1 ) must be taken
to exist even if participants in trade attribute the goods
and/or services to different origins ?                                     ( be ) such cash benefits as are not linked to any specific
                                                                                  expenditure incurred by the insured person and are
                                                                                  refundable in whole or in part by the fund, but are
(') First Council Directive 89/104/EEC of 21 December 1988 to
                                                                                  granted to him instead of a benefit in kind which
     approximate the laws of the Member States relating to trade
     marks ( OJ No L 40, 12 . 2 . 1992, p. 1 ).                                   could also have been possible, as a cash benefit, if the
                                                                                  insured person so chooses, completely irrespective of
                                                                                  whether and, if so, in what amount the insured
                                                                                  person has incurred or is incurring expenditure ?
Reference for a preliminary ruling from the Sozialgericht,
Hamburg, by order of that court of 28 November 1996
in the case of Peter Michael Jordy against 1 . Techniker
Krankenkasse and 2. Techniker Krankenkasse Pflege­                         Reference for a preliminary ruling by the Hof van Beroep,
                             versicherung                                  Antwerp, by judgment of that court of 27 January 1997 in
                                                                               the case of the Belgian State v. Foodie BV and Others
                           (Case C-40/97)
                                                                                                     ( Case C-41/97)
                               97/C 94/21
                                                                                                       ( 97/C 94/22 )
Reference has been made to the Court of Justice of the
European Communities by an order of the Sozialgericht                      Reference has been made to the Court of Justice of the
( Social Court), Hamburg, of 28 November 1996 , which                      European Communities by judgment of the Hof van Be­
was received at the Court Registry on 28 January 1997,                     roep ( Court of Appeal ), Antwerp, of 27 January 1997,
for a preliminary ruling in the case of Peter Michael Jordy                which was received at the Court Registry on 30 January
against 1 . Techniker Krankenkasse and 2 . Techniker Kran­                 1997, for a preliminary ruling in the case of the Belgian
kenkasse Pflegeversicherung on the following questions:                    State v. Foodie BV and Others on the following questions:
Are the benefits listed below cash benefits within the                     1 . Does 'Kashkaval ' in Regulation ( EEC ) No 1767/82 (')
meaning of Article 28 of Regulation (EEC ) No 1408/71 :                          refer solely to cheese made from sheep's milk ?
 ( aa ) any benefits provided to the insured person by the                 2 . Does an IMA 1 certificate issued pursuant to
        sickness assurance fund or care assurance fund in the                    Regulation ( EEC ) No 1767/82 but filled out in a
        form of money ( cash, remittance of a money demand,                      manner contrary to the instructions set out in the
        cheque, money transfer, etc .), irrespective of the                      Annexes to that Regulation satisfy the requirements of
        reason for or purpose of that benefit; or                                Article 2 of Regulation ( EEC ) No 1767/82, and, if
                                                                                 not, does this result in forfeiture of entitlement to a
 ( ab ) benefits so provided in money form, even if they are                     reduced import tariff?
        to serve a specific purpose, provided that they do not
        constitute complete or partial (contributory or lump­              (') OJ No L 196 , 5 . 7. 1982 , p . 1 .
        sum ) refunds of certain expenditure specifically
        incurred by the insured person for services obtained