CELEX: C2003/007/28
Language: en
Date: 2003-01-11 00:00:00
Title: Case C-406/02: Action brought on 13 November 2002 by the Commission of the European Communities against the Kingdom of Belgium

11.1.2003              EN                  Official Journal of the European Communities                                            C 7/15
Reference for a preliminary ruling by the High Court of                      practice, deceiving the public by the use of his own name
Justice (England and Wales) (Chancery Division) by order                     or (ii) the Defendant is merely causing unintentional
of that court dated 3 September 2002, in the case of                         confusion thereby?
     Nichols plc against the Registrar of Trade Marks
                                                                      (1 ) First Council Directive, of 21 December 1988, to approximate
                                                                           the laws of the Member States relating to trade marks (OJ L 40,
                        (Case C-404/02)                                    11.02.1989, p. 1).
                          (2003/C 7/27)
                                                                      Action brought on 13 November 2002 by the Com-
                                                                      mission of the European Communities against the
Reference has been made to the Court of Justice of the                                        Kingdom of Belgium
European Communities by an order of the High Court
of Justice (England and Wales) (Chancery Division) dated
3 September 2002, which was received at the Court Registry                                       (Case C-406/02)
on 12 November 2002, for a preliminary ruling in the case of
Nichols plc and the Registrar of Trade Marks on the following                                     (2003/C 7/28)
questions:
1.   In what circumstances, if any, must a trade mark (i.e. a         An action against the Kingdom of Belgium was brought
     ‘sign’ which complies with the requirements of Article 2         before the Court of Justice of the European Communities on
     of the Trade Marks Directive 89/104/EC ( 1) consisting of        13 November 2002 by the Commission of the European
     a single surname be refused registration as being in itself      Communities, represented by Bruno Stromsky, acting as
     ‘devoid of any distinctive character’ within the meaning         Agent.
     of Article 3(1) (b) of the Directive?
                                                                      The applicant claims that the Court should:
2.   In particular (a) must or (b) may such a sign, before it
     has acquired distinctive character by use, be refused
     registration if it is a common surname in the Member             1.     Declare that, by failing to send, within the prescribed
                                                                             period, the reports relating to Directives 76/464/EEC (1),
     State in which the trade mark is sought to be registered
     or if it is a common surname in one or more of the other                78/659/EEC (2) and 80/68/EEC (3) in respect of the Brux-
     Member States?                                                          elles-Capitale Region, the Kingdom of Belgium has failed
                                                                             to fulfil its obligations under Council Directive 91/692/
                                                                             EEC of 23 December 1991 standardizing and rationaliz-
                                                                             ing reports on the implementation of certain Directives
3.   If the answer to either Question 2 (a) or (b) is in the
                                                                             relating to the environment (4);
     affirmative, is it appropriate for national authorities to
     determine the matter by reference to the presumed
     expectations of an average customer in relation to the           2.     Order the Kingdom of Belgium to pay the costs.
     goods/services in question in the Member State, taking
     into account the commonness of the surname, the nature
     of the goods/services at issue, and the prevalence (or
     otherwise) of the use of surnames in the relevant trade?         Pleas in law and main arguments
4.   Is it of significance for the purpose of determining             Under Article 2 of Directive 91/692/EEC, Belgium should have
     whether a surname is ‘devoid of any distinctive character’       sent to the Commission a report covering the period from
     within Article 3(1) (b) of the Directive that the effects        1993 to 1995 inclusive, drawn up on the basis of a question-
     of registration of the trade mark are restricted under           naire laid down in Decision 92/446/EEC and sent to Belgium
     Article 6(1) (a)?                                                in good time. Belgium was to have sent the report in question
                                                                      by 30 September 1996 at the latest. However, not all of
                                                                      those data were forwarded to the Commission within the
5.   If so, (a) is the word ‘person’ in Article 6(1) (a) of the       abovementioned period so far as concerns the Bruxelles-
     Directive to be understood as including a corporation or         Capitale Region:
     a business and (b) what amounts to ‘honest practices in
     industrial or commercial matters’; in particular, does that      —      As regards amended Directive 76/464/EEC, no data was
     expression apply where (i) the Defendant is not, in                     forwarded in respect of the years 1993 to 1995;
 ---pagebreak--- C 7/16                    EN                   Official Journal of the European Communities                                        11.1.2003
—       As regards amended Directive 78/659/EEC, not all of               another Member State, rely on the directive in order to obtain
        the requisite information was forwarded — thus, the               from the State of residence recognition of the licence issued in
        Commission had no information regarding the total                 the State of origin and thereby escape being charged with
        surface or length of water supporting fish life, nor              driving without a valid licence?
        whether the waters complied with the parameters laid
        down in that directive;
                                                                          (1 ) Council Directive 91/439/EEC of 29 July 1991 on driving licences
                                                                               (OJ L 237 of 24.08.1991, p. 1).
—       As regards amended Directive 80/68/EEC, not all of
        the requisite information was forwarded — thus, the
        Commission did not receive the requested information
        relating to authorisations, the measuring system and
        ground water.
The Commission points out that at the expiry of the period
                                                                          Action brought on 18 November 2002 by the Com-
granted to the Kingdom of Belgium by the reasoned opinion,
the missing information had still not been received by the                    mission of the European Communities against Ireland
Commission, the explanation for such absence of information
being that the competent authorities did not ensure collection                                      (Case C-410/02)
of the data necessary for the drawing up of the reports in
question.
                                                                                                      (2003/C 7/30)
( 1) Council Directive 76/464/EEC of 4 May 1976 on pollution caused
     by certain dangerous substances discharged into the aquatic
     environment of the Community (OJ 1976 L 129, p. 23).                 An action against Ireland was brought before the Court of
( 2) Council Directive 78/659/EEC of 18 July 1978 on the quality of       Justice of the European Communities on 18 November 2002
     fresh waters needing protection or improvement in order to           by the Commission of the European Communities, represented
     support fish life (OJ 1978 L 222, p. 1).                             by L. Ström and X. Lewis, acting as agents, with an address for
( 3) Council Directive 80/68/EEC of 17 December 1979 on the               service in Luxembourg.
     protection of groundwater against pollution caused by certain
     dangerous substances OJ 1980 L 20, p. 43).
( 4) OJ 1991 L 377, p. 48
                                                                          The Applicant claims that the Court should:
                                                                          1)     declare that by failing to adopt the laws, regulations
                                                                                 or administrative provisions necessary to comply with
                                                                                 Commission Directive 2001/8/EC ( 1) of 8 February 2001
                                                                                 replacing Annex I to Council Directive 92/109/EEC on
                                                                                 the manufacture and placing on the market of certain
                                                                                 substances used in the illicit manufacture of narcotic
Reference for a preliminary ruling by the Cour de                                drugs and psychotropic substances or, in any event, by
Cassation du Grand-Duché de Luxembourg by judgment                               failing to notify such provisions to the Commission,
of that Court of 31 October 2002 in the case of José                             Ireland has failed to fully fulfil its obligations under
     Antonio Da Silva Carvalho against Ministère Public                          Article 2 of this directive;
                            (Case C-408/02)                               2)     order Ireland to pay the costs.
                             (2003/C 7/29)
                                                                          Pleas in law and main arguments
Reference has been made to the Court of Justice of the                    Article 249 EC, under which a directive shall be binding as to
European Communities by judgment of the Cour de Cassation                 the result to be achieved, upon each Member State, carries by
du Grand-Duché de Luxembourg of 31 October 2002, received                 implication an obligation on the Member States to observe the
at the Court Registry on 15 November 2002, for a preliminary              period for compliance laid down in the directive. That period
ruling in the case of José Antonio Da Silva Carvalho against              expired on 1 March 2001 without Ireland having enacted the
Ministère Public on the following question:                               provisions necessary to comply with the directive referred to
                                                                          in the conclusions of the Commission.
On a proper interpretation of Article 1(2) and (3) of Council
                                                                          (1 ) OJ L 39, 09.02.2001, p. 31.
Directive 91/439/EEC of 29 July 1991 (1), may a person who
has obtained a driving licence during a brief stay in his country
of origin, at a time when he was already normally resident in