CELEX: C2002/289/19
Language: en
Date: 2002-11-23 00:00:00
Title: Case C-329/02 P: Appeal brought on 18 September 2002 (faxed on 12 September 2002) by SAT.1 SatellitenFernsehen GmbH against the judgment delivered on 2 July 2002 by the Second Chamber of the Court of First Instance of the European Communities in Case T-323/00 between SAT.1 SatellitenFernsehen GmbH and the Office for Harmonisation of the Internal Market

23.11.2002              EN                    Official Journal of the European Communities                                       C 289/11
1.     Do Paragraphs 16 and 18 of the Sozialgesetzbuch (Code             group with turbine and generator adapted for low heads’,
       of Social Law) relating to statutory sickness insurance           which was terminated by Commission under Article 8. The
       (‘SGB V’), which in this country make reimbursement of            contract is governed by French law and the parties have agreed
       the costs of dental treatment carried out by a dentist in         to submit any disputes to the Court of Justice of the European
       another Member State subject to authorisation based on            Communities.
       the merits of the case by the insured person’s social
       security institution, infringe Articles 59 and 60 of the
       EC Treaty, even where the national statutory sickness
       insurance scheme is based on the benefit-in-kind principle
       (and not, as in Case C-158/96 Kohll v Union des caisses
       de maladie (1), on the cost-reimbursement principle)?
2.     If, depending on the answer to Question 1, the defendant          Appeal brought on 18 September 2002 (faxed on 12 Sep-
       were to be required, for reasons connected with Com-              tember 2002) by SAT.1 SatellitenFernsehen GmbH
       munity law, to reimburse the costs of the dental treatment        against the judgment delivered on 2 July 2002 by the
       (in this case provided in the Republic of Austria), is the        Second Chamber of the Court of First Instance of the
       amount of the claim for reimbursement governed by the             European Communities in Case T-323/00 between SAT.1
       costs actually incurred or is that amount restricted to the       SatellitenFernsehen GmbH and the Office for Harmonis-
       rates applicable under the national sickness insurance                              ation of the Internal Market
       scheme (in this case that of the Federal Republic of
       Germany)?
                                                                                                 (Case C-329/02 P)
( 1) European Court Reports 1998, page I-01931.                                                   (2002/C 289/19)
                                                                         An appeal against the judgment delivered on 2 July 2002 by
                                                                         the Second Chamber of the Court of First Instance of the
                                                                         European Communities in Case T-323/00 between SAT.1
                                                                         SatellitenFernsehen GmbH and the Office for Harmonisation
Action brought on 16 September 2002 by the Com-
                                                                         of the Internal Market (Trademarks and Designs) was brought
mission of the European Communities against Hydrowatt
                                                                         before the Court of Justice of the European Communities on
                       SARL (‘Hydrowatt’)
                                                                         18 September 2002 (faxed on 12 September 2002) by
                                                                         SAT.1 SatellitenFernsehen GmbH, represented by Reinhard
                          (Case C-323/02)                                Schneider, Rechtsanwalt, Büsing, Müffelmann and Theye,
                                                                         Marktstraße 3, D-28195 Bremen, with an address for service
                          (2002/C 289/18)                                in Luxembourg.
                                                                         The appellant claims that the Court should:
An action against Hydrowatt Sarl (‘Hydrowatt’) was brought
before the Court of Justice of the European Communities on               1.    set aside the contested judgment ( 1), in so far as it
16 September 2002 by the Commission of the European                            dismissed the action (2) as formulated in the form of order
Communities, represented by H. Støvlbæk, acting as Agent and                   sought;
E. Cabau, lawyer, with an address for service in Luxembourg.
                                                                         2.    order the Office to pay the costs.
The Commission of the European Communities claims that
the Court should order Hydrowatt to:
                                                                         Pleas in law and main arguments
—      pay to the Commission the principal sum of
       25 109 euros, together with default interest of
       23 422,91 euros, making a total of 48 531,91 euros;               —     Infringement of Article 7(1)(b) of Council Regulation
                                                                               No 40/94 on the Community trade mark (‘the Regu-
—      pay the Commission’s costs in these proceedings.                        lation’): the Court erred in law in finding that
                                                                               Article 7(1)(b) of the Regulation also pursues the general
                                                                               interest objective of allowing signs covered by that
                                                                               provision to be used freely by everyone. There is,
Pleas in law and main arguments                                                however, no evident reason to assume that indications
                                                                               which are merely not suitable for distinguishing goods or
                                                                               services according to their origin must be available for
The action seeks reimbursement of the part of a subsidy                        free use. In the present case it was therefore necessary for
awarded under a contract for the completion of a project ‘New                  the Court to examine whether the compound sign ‘SAT.2’
 ---pagebreak--- C 289/12                EN                     Official Journal of the European Communities                                     23.11.2002
      enables the relevant class of persons to distinguish the            at the Court Registry on 23 September 2002, for a preliminary
      services in question from services of another business              ruling in the proceedings between Saatgut-Treuhandverwal-
      source. Instead the Court based its view that the sign in           tungs-GmbH and Brangewitz GmbH on the following ques-
      question fell within the scope of Article 7(1)(b) of the            tions concerning the interpretation of Article 14(3), sixth
      Regulation on the fact that it did not satisfy criteria for         indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
      protection governed by other provisions. It interprets              1994 on Community Plant variety rights (OJ 1994 L 227,
      Article 7(1)(b) as a catch-all provision for cases in which         p. 1) in conjunction with Article 9 of Commission Regulation
      the trade marks applied for, despite having descriptive             (EC) No 1768/95 ( 2) of 24 July 1995:
      character, do not fall within the scope of the grounds
      for rejecting protection under Article 7(1)(c) of the               1.     Are the abovementioned provisions to be interpreted as
      Regulation.                                                                meaning that the holder of a variety protected under
                                                                                 Regulation No 2100/94 can request the supplier of
      The splitting by the Court of the trade mark ‘SAT.2’ into                  processing services or the processor to provide the
      its component parts does not reflect the view and
                                                                                 information specified in those provisions, regardless of
      approach adopted by consumers. The distinctive charac-                     whether there is any evidence that the supplier of
      ter or lack of distinctive character of the trade mark must                processsing services has supplied a processing service in
      to some degree be apparent ‘at first sight’.                               respect of the protected variety concerned or that the
                                                                                 processor has processed the protected variety concerned?
(in the alternative)                                                      2.     If there must be evidence for the factual situation referred
                                                                                 to in Question 1:
—     Infringement of the principle of equal treatment: it may
                                                                                 Must the supplier of processing services or processor
      be correct that a person cannot rely on a failure to apply
                                                                                 provide information pursuant to Article 14(3), sixth
      the law which has benefitted another person. In the
                                                                                 indent, of Regulation No 2100/94 in conjunction with
      present case, however, the appellant did not point to
                                                                                 Article 9 of Regulation No 1768/95 with regard to all the
      wrongly-decided isolated cases, but to the Office’s clearly
                                                                                 farmers to whom he has supplied the processing service
      recognisable general practice of allowing in principle
                                                                                 in respect of the protected variety concerned and/or for
      applications for registration of trademarks consisting of a
                                                                                 whom he has carried out the processing of the protected
      combination of numbers and descriptive indications/
                                                                                 variety concerned, or only with regard to those farmers
      abbreviations. The appellant refers in this connection in
                                                                                 in respect of whom the holder has evidence that the
      particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
                                                                                 supplier of processing services has supplied processing
      Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
                                                                                 services in respect of the protected variety concerned
      4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
                                                                                 and/or the processor has carried out the processing of the
      920 157) and ‘B-MAIL’ (000 896 399).
                                                                                 protected variety concerned?
( 1) OJ 2002 C 202, p. 23.
                                                                          (1 ) OJ L 227, p. 1.
( 2) OJ 2001 C 4, p. 5.
                                                                          (2 ) OJ L 173, p. 14.
Reference for a preliminary ruling by the Landgericht                     Action brought on 24 September 2002 by Commission
Düsseldorf by order of that Court of 17 September 2002                       of the European Communities against French Republic
in the proceedings between Saatgut-Treuhandverwal-
             tungs-GmbH and Brangewitz GmbH
                                                                                                   (Case C-340/02)
                         (Case C-336/02)
                                                                                                   (2002/C 289/21)
                         (2002/C 289/20)
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 24 Septem-
Reference has been made to the Court of Justice of the                    ber 2002 by the Commission of the European Communities,
European Communities by order of the Landgericht Düsseldorf               represented by M. Nolin, acting as Agent, with an address for
(Regional Court, Düsseldorf) of 17 September 2002, received               service in Luxembourg.