CELEX: C2003/124/10
Language: en
Date: 2003-05-24 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 124/6                 EN                         Official Journal of the European Union                                         24.5.2003
The appellant claims that the Court should:                                      issue, the public will perceive above all or primarily a sign
                                                                                 that fulfils a technical or ornamental function that the
                                                                                 performance of its function as an individual trade mark
—     set aside the judgment of the Court of First Instance of                   would be precluded or even reduced.
      12 December 2002 in Case T-63/01 and, in consequence
      thereof,
      —     primarily: apply Article 54 of the Statute of the
            Court of Justice and give final judgment in the
            matter, upholding the form of order sought by the
            appellant before the Court of First Instance;                  Reference for a preliminary ruling by the College van
                                                                           Beroep voor het bedrijfsleven by judgment of that Court
      —     in the alternative: refer the case back to the Court of        of 8 January 2003 in the case of KPN Telecom B.V. against
                                                                           Onafhankelijke Post en Telecommunicatie Autoriteit;
            First Instance for judgment;
                                                                           Interested parties: Denda Multimedia B.V. and Denda
                                                                                                Directory Services B.V.
—     in any event: order OHIM to pay the costs.
                                                                                                     (Case C-109/03)
                                                                                                     (2003/C 124/10)
Pleas in law and main arguments
—     Plea alleging breach of the presumption that documents               Reference has been made to the Court of Justice of the
      may be relied on or inconsistency in the grounds of the              European Communities by order of the College van Beroep
      judgment:                                                            voor het bedrijfsleven (Administrative Court for Trade and
                                                                           Industry) of 8 January 2003, received at the Court Registry on
      Contrary to what the Court of First Instance states, the             10 March 2003, for a preliminary ruling in the case of KPN
      sign reproduced does not present any of the 24 rectangles            Telecom B.V. against Onafhankelijke Post en Telecommunica-
      or any of the six parallelograms of which a rectangular              tie Autoriteit; Interested parties: Denda Multimedia B.V. and
      parallelepiped consists.                                             Denda Directory Services B.V. on the following questions:
                                                                           1.    Is ‘relevant information’ in Article 6(3) of Directive 98/
—     Plea alleging misconstruction of the concept of distinctive                10/EC ( 1) to be interpreted as meaning only the numbers
      character:                                                                 together with the name, address, town/city and postcode
                                                                                 of the person to whom the number has been issued and
      When it is necessary to determine whether a sign is                        any entry as to whether the number is used (exclusively)
      capable of fulfilling its function as an individual mark                   as a fax line published by the organisations concerned or
      for specific goods or services, when the merits of an                      does ‘relevant information’ also cover other data at the
      application for registration as an individual mark for                     disposal of the organisations such as an additional
      those goods and services are being examined, it is                         entry relating to a profession, another name, another
      necessary to reason in terms of the presumed perception                    municipality or mobile telephone numbers?
      of the use which might be made of the sign and not in
      terms of the actual perception of any actual use already             2.    Is ‘meet (...) reasonable requests (...) on terms which
      made of the sign. The Court of First Instance maintains                    are fair, cost oriented and non-discriminatory’ in the
      that the distinctive character of the sign must be assessed                provision referred in Question 1 to be interpreted as
      in relation ‘to the perception of the relevant public’. In                 meaning that:
      that regard, the relevant public consists of all persons
      likely to find themselves in the presence of the sign and                  a)    numbers together with the name, address, town/city
      cannot therefore be reduced to the much more restricted                          and postcode of the person to whom the number
      circle of consumers likely to acquire the goods or services                      has been issued must be made available for a
      which the sign is supposed to designate.                                         remuneration of only the marginal costs involved in
                                                                                       actually making them available, and
      Furthermore, the Court of First Instance indirectly but
      definitely misconstrued the concept of distinctive charac-                 b)    data other than those referred to in paragraph (a)
      ter when it failed to rule on whether or not the sign was                        must be made available for a remuneration intended
      incapable of distinguishing one bar of soap from another                         to cover the costs of what the provider of these data
      as coming from a specific undertaking, but rather whether                        shows he has incurred in obtaining or providing
      the imperfect picture of that sign had such capacity.                            these data?
      Last, the Court of First Instance misunderstood the
      concept of distinctive character by completely disre-                (1 ) OJ L 101 [1998], p. 24.
      garding the multifunctionality of signs. It is not because
      it might be presumed that, in the presence of the sign in