CELEX: C2003/031/18
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-445/02 P: Appeal brought on 9 December 2002 by Glaverbel against the judgment delivered on 9 October 2002 by the Second Chamber of the Court of First Instance of the European Communities in case T-36/01 between Glaverbel and the Office for Harmonization in the Internal Market (Trademarks and Designs) (OHIM)

C 31/12                  EN                        Official Journal of the European Union                                          8.2.2003
       duces into the Community legal order, be construed as               Reference for a preliminary ruling by the Monomeles
       meaning that the terms ‘biocidal products’ and ‘low-risk            Protodikio Athinon by order of that Court of 11 July
       biocidal product’ refer solely to products whose biocidal           2002 in the case of Fixtures Marketing Limited against
       function depends on active substances added to those                    Organismos Prognostikon Agonon Podosphairou AE
       products by chemical or biological means through pro-
       cesses expressly designed to add such substances in order                                    (Case C-444/02)
       to confer on those products a biocidal function?
                                                                                                     (2003/C 31/17)
2.     Must Article 2(1)(c) of Directive 98/8/EC, in the light of
       the general rules which that directive introduces into the
       Community legal order, be construed as meaning that the             Reference has been made to the Court of Justice of the
       term ‘basic substance’ refers to substances which are not           European Communities by order of the Monomeles Protodikio
       added to a product in order to enable it to perform an              Athinon (Single-Judge Court of First Instance, Athens) of
       intended biocidal function but such a biocidal function is          11 July 2002, received at the Court Registry on 9 December
       performed in addition to the function normally perfor-              2002, for a preliminary ruling in the case of Fixtures Marketing
       med by that product during its use (as an example: liquid           Limited against Organismos Prognostikon Agonon Podosphai-
       for a dishwasher which, by virtue of the addition of a              rou AE (Football-match-results-forecasting Undertaking) on
       substance designed to improve its detergent function,               the interpretation of Article 7 of Directive 96/9/EC and the sui
       may also have a bactericidal function)?                             generis right thereunder in connection with the following
                                                                           issues:
3.     May a piece of red cedar wood, simply by virtue of the              1.    the concept of databases and the scope of Directive 96/
       fact that it is marketed as being ‘anti-moth’, be classifiable            9/EC ( 1) and in particular Article 7 thereof (sui generis
       as a ‘biocidal product’, as a ‘low-risk biocidal product’ or              right).
       as a ‘basic substance’ within the meaning of Directive 98/
       8/EC, bearing in mind that: (a) the wood in question has            2.    Further to determination of the scope of the directive,
       in no way been treated chemically or biologically; (b) the                whether the lists of football fixtures enjoy protection as
       substance on which the effects attributed to the wood                     databases over which there is a sui generis right in favour
       may depend is naturally present in the product; (c) the                   of the maker and with what consequences.
       product is substantially marketed as found in its natural
       state?                                                              3.    How exactly the database right is infringed and whether
                                                                                 it is protected in regard to rearrangement of the contents
                                                                                 of the database.
4.     Must Article 2(1)(c) of Directive 98/8/EC be construed as
       meaning that it is only if a ‘basic substance’ is included
       on the list referred to in Annex IB that that substance             (1 ) OJ L 77 of 27.3.1996, p. 20.
       may be exempted from the authorisation and registration
       provided for the marketing in the Member States of
       products covered by Article 2, with such inclusion on the
       list referred to in Annex IB thus acquiring constitutive
       effectiveness for all purposes?
                                                                           Appeal brought on 9 December 2002 by Glaverbel against
5.     Must Article 4 of Directive 98/8/EC, by reference to                the judgment delivered on 9 October 2002 by the Second
       Articles 28 EC and 30 EC, be construed as meaning that              Chamber of the Court of First Instance of the European
       a product such as that described in Question 3, placed              Communities in case T-36/01 (1) between Glaverbel and
       lawfully on the market in a Member State without any                the Office for Harmonization in the Internal Market
       need for authorisation or registration in that Member                              (Trademarks and Designs) (OHIM)
       State, may be made subject to authorisation or regis-
       tration in another Member State in which it is sub-                                         (Case C-445/02 P)
       sequently marketed by reason of the fact that the product
       in question is not included on the list referred to in
       Annex IB to Directive 98/8/EC?                                                                (2003/C 31/18)
                                                                           An appeal against the judgment delivered on 9 October 2002
( 1) Directive 98/8/EC of the European Parliament and of the Council       by the Second Chamber of the Court of First Instance of the
     of 16 February 1998 concerning the placing of biocidal products       European Communities in case T-36/01 between Glaverbel
     on the market (OJ L 123 of 24.04.1998, p. 1).                         and the Office for Harmonization in the Internal Market
                                                                           (Trademarks and Designs) (OHIM), was brought before the
                                                                           Court of Justice of the European Communities on 9 December
                                                                           2002 by Glaverbel, represented by Susanne Möbus, Attorney
                                                                           at Law, with an address for service in Luxembourg.
 ---pagebreak--- 8.2.2003                EN                       Official Journal of the European Union                                          C 31/13
The Appellant claims that the Court should:                              findings that the relevant consumer is not used to regarding
                                                                         designs applied to the surface of glass sheets as an indication
                                                                         of the trade origin of the goods, and that the design is not
1.    annul the judgment of the Court of First Instance of               immediately recognisable as an indication of the trade origin
      9 October 2002 in Case T-36/01 Glaverbel v. Office for             of the goods but as a functional component.
      Harmonization (glass pattern) in so far as it found that
      the First Board of Appeal of the Office for Harmonization
      in the Internal Market (Trademarks and Designs) did not
                                                                         (1 ) OJ C 118, 21.04.2001, p. 41.
      infringe Article 7 (1)(b) of Council Regulation (EC)
                                                                         (2 ) OJ L 011, 14.01.1994, p. 1.
      No 40/94 of 20 December 1993 on the Community
      trademark ( 2) in adopting its decision of 30 November
      2000 (Case R 137/2000-1).
2.    annul the decision of the First Board of Appeal of
      the Office of Harmonization in the Internal Market
      (Trademarks and Designs) of 30 November 2000 (Case R
      137/2000-1) in so far as it refused the application
      No. 811 281 for registration of a design applied to a
      surface of the goods (glass pattern) as a trademark on the
      basis of Article 7 (1)(b) of Regulation No 40/94;                  Action brought on 11 December 2002 by the Hellenic
                                                                         Republic against the Commission of the European Com-
                                                                                                      munities
3.    orders the Office for Harmonization in the Internal
      Market (Trademarks and Designs) to pay the costs both
      at first instance and on appeal.                                                           (Case C-448/02)
                                                                                                  (2003/C 31/19)
Pleas in law and main arguments
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
By annulling the contested decision for the infringement of a            Communities on 11 December 2002 by the Hellenic Republic,
right to a hearing with respect to the arguments based on                represented by Ioannis Khalkias and Georgios Kanellopoulos,
Article 7 (3) of Regulation No 40/94 and in doing so on that             Members of the State Legal Service, with an address for service
ground alone, the contested judgment allowed that part of the            in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix.
decision relating to the registrability of the Community
trademark application in respect of Article 7 (1)(b) of the
Regulation to stand.
                                                                         The applicant claims that the Court should:
                                                                         —     annul or, in the alternative, amend Commission Decision
The Appellant maintains that in order for the OHIM to                          C(2002) 3771 of 14 October 2002 amending Decision
take the necessary measures to comply with the contested                       1999/187/EC ( 1), relating to the exclusion from Com-
judgment, the OHIM could therefore simply confine itself to                    munity funding of certain expenditure incurred by the
considering the arguments submitted by the Appellant in                        Member States within the framework of the Guarantee
respect of Article 7 (3) without altering its interpretation of                Section of the EAGGF (2), so far as concerns financial
Article 7 (1)(b) of the Regulation. Accordingly the Appellant                  corrections to the detriment of the Hellenic Republic in
submits that it has an interest in appealing the contested                     the arable crops sector for the financial year 1995.
judgment.
The Appellant submits that the CFI was wrong in finding that             Grounds for annulment and main arguments
the sign in question is devoid of any distinctive character for
the purposes of Article 7 (1)(b) of Regulation No 40/94 and
that that finding is based on a wrong assessment and                     —     The differences are not actual; incorrect interpretation
interpretation of the aforementioned article. The Appellant                    and application of Article 5(2)(c) of Regulation (EEC)
also maintains that the Board of Appeal was not correct in its                 No 729/70.