CELEX: C2003/146/30
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-109/03: Reference for a preliminary ruling by the College van Beroep voor het bedrĳfsleven by judgment of that Court of 8 January 2003 in the case of KPN Telecom B.V. against Onafhankelĳke Post en Telecommunicatie Autoriteit; Interested parties: Denda Multimedia B.V. and Denda Directory Services B.V.

C 146/18                EN                         Official Journal of the European Union                                        21.6.2003
      —     in the alternative: refer the case back to the Court of        Reference for a preliminary ruling by the College van
            First Instance for judgment;                                   Beroep voor het bedrijfsleven by judgment of that Court
                                                                           of 8 January 2003 in the case of KPN Telecom B.V. against
                                                                           Onafhankelijke Post en Telecommunicatie Autoriteit;
—     in any event: order OHIM to pay the costs.                           Interested parties: Denda Multimedia B.V. and Denda
                                                                                                Directory Services B.V.
                                                                                                     (Case C-109/03)
Pleas in law and main arguments
                                                                                                     (2003/C 146/30)
—     Plea alleging breach of the presumption that documents
      may be relied on or inconsistency in the grounds of the
      judgment:
      Contrary to what the Court of First Instance states, the             Reference has been made to the Court of Justice of the
      sign reproduced does not present any of the 24 rectangles            European Communities by order of the College van Beroep
      or any of the six parallelograms of which a rectangular              voor het bedrijfsleven (Administrative Court for Trade and
      parallelepiped consists.                                             Industry) of 8 January 2003, received at the Court Registry on
                                                                           10 March 2003, for a preliminary ruling in the case of KPN
                                                                           Telecom B.V. against Onafhankelijke Post en Telecommunica-
                                                                           tie Autoriteit; Interested parties: Denda Multimedia B.V. and
—     Plea alleging misconstruction of the concept of distinctive
      character:                                                           Denda Directory Services B.V. on the following questions:
      When it is necessary to determine whether a sign is                  1.    Is ‘relevant information’ in Article 6(3) of Directive 98/
      capable of fulfilling its function as an individual mark                   10/EC ( 1) to be interpreted as meaning only the numbers
      for specific goods or services, when the merits of an                      together with the name, address, town/city and postcode
      application for registration as an individual mark for                     of the person to whom the number has been issued and
      those goods and services are being examined, it is                         any entry as to whether the number is used (exclusively)
      necessary to reason in terms of the presumed perception                    as a fax line published by the organisations concerned or
      of the use which might be made of the sign and not in                      does ‘relevant information’ also cover other data at the
      terms of the actual perception of any actual use already                   disposal of the organisations such as an additional
      made of the sign. The Court of First Instance maintains                    entry relating to a profession, another name, another
      that the distinctive character of the sign must be assessed                municipality or mobile telephone numbers?
      in relation ‘to the perception of the relevant public’. In
      that regard, the relevant public consists of all persons
      likely to find themselves in the presence of the sign and            2.    Is ‘meet (...) reasonable requests (...) on terms which
      cannot therefore be reduced to the much more restricted                    are fair, cost oriented and non-discriminatory’ in the
      circle of consumers likely to acquire the goods or services                provision referred in Question 1 to be interpreted as
      which the sign is supposed to designate.                                   meaning that:
      Furthermore, the Court of First Instance indirectly but                    a)    numbers together with the name, address, town/city
      definitely misconstrued the concept of distinctive charac-                       and postcode of the person to whom the number
      ter when it failed to rule on whether or not the sign was                        has been issued must be made available for a
      incapable of distinguishing one bar of soap from another                         remuneration of only the marginal costs involved in
      as coming from a specific undertaking, but rather whether                        actually making them available, and
      the imperfect picture of that sign had such capacity.
      Last, the Court of First Instance misunderstood the                        b)    data other than those referred to in paragraph (a)
      concept of distinctive character by completely disre-                            must be made available for a remuneration intended
      garding the multifunctionality of signs. It is not because                       to cover the costs of what the provider of these data
      it might be presumed that, in the presence of the sign in                        shows he has incurred in obtaining or providing
      issue, the public will perceive above all or primarily a sign                    these data?
      that fulfils a technical or ornamental function that the
      performance of its function as an individual trade mark
      would be precluded or even reduced.
                                                                           (1 ) OJ L 101 [1998], p. 24.