CELEX: C2002/144/38
Language: en
Date: 2002-06-15 00:00:00
Title: Case C-136/02 P: Appeal brought on 11 April 2002 by Mag Instrument, Inc. against the judgment delivered on 7 February 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-88/00 between Mag Instrument, Inc. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

C 144/22                EN                     Official Journal of the European Communities                                      15.6.2002
Reference for a preliminary ruling by the Gerechtshof                           No 000206698 and No 000206870 pursuant to Article 7
(Douanekamer) te Amsterdam by judgment of that Court                            of the Community Trade Mark Regulation;
of 2 April 2002 in the case of Hoogenboom Production
    Ltd. against head of the Roosendaal Customs district
                                                                          —     annul the decision of the Second Board of Appeal of
                                                                                14 February 2000 in Cases R 0237/1999-2, R 0238/
                          (Case C-134/02)                                       1999-2, R 0239/1999-2, R 0240/1999-2 and R 0241/
                                                                                1999-2;
                          (2002/C 144/37)
                                                                          —     order the respondent to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by judgment of the Gerechtshof
(Douanekamer) te Amsterdam (Amsterdam Regional Court of
Appeal) Customs Chamber of 2 April 2002, received at the                  Pleas and main arguments
Court Registry on 10 April 2002, for a preliminary ruling in
the case of Hoogenboom Production Ltd. against head of the
Roosendaal Customs district on the following question:                    —     Infringement of Article 7(1)(b) of Council Regulation (EC)
                                                                                No 40/94 (2): the Court of First Instance does not deal in
The question is identical to Case C-133/02.                                     its judgment with the overall signs in respect of which
                                                                                registration is sought but rather, as a result of a divided
                                                                                analysis, bases its examination on signs which are not
(1) See p. 21 of the present Official Journal.                                  those in respect of which the applications were made.
                                                                          —     Incorrect evaluation of evidence running counter to the
                                                                                principles of logic: the facts and evidence which the Court
                                                                                of First Instance expressly did not consider and which
                                                                                relate solely to distinctiveness of origin were wrongly not
                                                                                taken into account by the Court on the ground that they
Appeal brought on 11 April 2002 by Mag Instrument, Inc.                         relate only to distinctiveness resulting from use and the
against the judgment delivered on 7 February 2002 by the                        Court thereby acted illogically. However, even in the case
Fourth Chamber of the Court of First Instance of the                            of facts and evidence with respect to which it cannot be
European Communities in Case T-88/00 between Mag                                excluded that they relate, inter alia, to distinctiveness
Instrument, Inc. and the Office for Harmonisation in the                        resulting from use, there is much to support the view that
         Internal Market (Trade Marks and Designs)                              the distinctiveness does not result only from use but,
                                                                                rather, that it already existed originally. Obviously, only a
                                                                                good design will be imitated.
                         (Case C-136/02 P)
                                                                          —     Infringement of the right to a hearing (Article 6(2) of the
                          (2002/C 144/38)
                                                                                EU Treaty in conjunction with Article 6 ECHR, first
                                                                                indent of Article 41(2) of the EU Charter of Fundamental
                                                                                Rights): the Court of First Instance did not deal in
                                                                                a concrete manner with the wide variety of shapes
An appeal against the judgment delivered on 7 February 2002                     demonstrated by the facts and evidence submitted by the
by the Fourth Chamber of the Court of First Instance of                         appellant and clearly failed to analyse sufficiently the
the European Communities in Case T-88/00 between Mag                            submitted material relating to original distinctiveness.
Instrument, Inc. and the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (1) was brought
before the Court of Justice of the European Communities on                —     Infringement of Article 7(1)(b) of Regulation No 40/94:
11 April 2002 by Mag Instrument, Inc., represented by                           the Court of First Instance erred in law in holding that
A. Nette, G. Rahn, W. von der Osten-Sacken and H. Stratmann                     the accepted public view — that is, the actual perception
of the lawyers’ office Hoffmann Eitle in Munich.                                by consumers — cannot be considered in the context of
                                                                                Article 7(1)(b) but, rather, exclusively in the context of
                                                                                Article 7(3).
The appellant claims that the Court should:
—     set aside the judgment of the Court of First Instance of            —     Infringement of Article 7(1)(b) of Regulation No 40/94:
      the European Communities of 7 February 2002 in Case                       the Court of First Instance failed to make any findings of
      T-88/00, holding that there are no absolute grounds for                   fact of its own with respect to the issues of whether, as it
      refusal to register the Community trade mark applications                 simply presumed in a general manner, the shapes are in
      No 000139527, No 000119552, No 000206789,                                 fact common, the consumer is accustomed to the shapes
 ---pagebreak--- 15.6.2002              EN                    Official Journal of the European Communities                                          C 144/23
     in respect of which registration is sought, the same type                income-based jobseeker’s allowance to a person in the
     of goods are commonly found in the trade and the nature                  circumstances of the claimant in the present case?
     of the marks influences the perception of the marks by
     the targeted public.
—    Infringement of Article 7(1)(b) of Regulation No 40/94:            (1) on freedom of movement for workers within the Community (OJ
     the requirements imposed by the Court of First Instance                L 257, 19.10.1968, p. 2) (SE SER 1 68(II), p. 475).
     with respect to distinctiveness are too stringent.                 (2) on the abolition of restrictions on movement and residence within
                                                                            the Community for workers of Member States and their families
                                                                            (OJ L 257, 19.10.1968, p. 13) (SE SER 1 68(II), p. 485).
—    Infringement of Article 7(1)(b) of Regulation No 40/94:
     the Court of First Instance imposes incorrect requirements
     with respect to distinctiveness which are not provided for
     in the Regulation by presuming, without any factual
     basis, that the existence — assumed by it — of ‘a wide
     variety of designs’ and the average consumer’s familiarity
     with shapes similar to those at issue influence distinc-
     tiveness.
(1) Not yet published in the European Court Reports.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark, OJ 1994 L 11, p. 1.
                                                                        Reference for a preliminary ruling by the House of Lords,
                                                                        by order of that court dated 17 December 2001, in the
                                                                        case of Regina against Minister of Agriculture, Fisheries
                                                                        and Food, Ex parte: S.P. Anastasiou (Pissouri) Limited and
                                                                        others, Interveners: Cypfruvex (UK) Ltd, Cypfruvex Fruit
                                                                                 and Vegetable (Cypfruvex) Enterprises Ltd
Reference for a preliminary ruling by the Social Security
Commissioners, London, by order dated 28 March 2002,
in the case of Brian Francis Collins against Secretary of                                          (Case C-140/02)
                  State for Work and Pensions
                          (Case C-138/02)                                                          (2002/C 144/40)
                         (2002/C 144/39)
                                                                        Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the House of Lords
European Communities by an order of the Social Security
                                                                        dated 17 December 2001, which was received at the Court
Commissioners, London, dated 28 March 2002, which was
                                                                        Registry on 16 April 2002, for a preliminary ruling in the case
received at the Court Registry on 12 April 2002, for a
                                                                        of Regina against Minister of Agriculture, Fisheries and Food,
preliminary ruling in the case of Brian Francis Collins and
                                                                        Ex parte: S.P. Anastasiou (Pissouri) Limited and others, Inter-
Secretary of State for Work and Pensions on the following
                                                                        veners: Cypfruvex (UK) Ltd, Cypfruvex Fruit and Vegetable
questions:
                                                                        (Cypfruvex) Enterprises Ltd, on the following questions:
1.   Is a person in the circumstances of the claimant in the
     present case a worker for the purposes of Regulation               1.    Whether, where citrus fruit originating in one third
     No 1612/68 (1) of the Council of 15 October 1968?                        country has been shipped to another third country, the
                                                                              special requirement that the packaging shall bear an
2.   If the answer to question 1 is not in the affirmative, does              appropriate origin mark pursuant to item 16.1 of
     a person in the circumstances of the claimant in the                     Annex IVA of Directive 77/93/EEC, now Directive 2000/
     present case have a right to reside in the United Kingdom                29/EC (1), can only be fulfilled in the country of origin or
     pursuant to Directive No 68/360 (2) of the Council of                    whether it may alternatively be fulfilled in such other
     15 October 1968?                                                         third country?
3.   If the answers to both questions 1 and 2 are not in the
     affirmative, do any provisions or principles of European           2.    Whether the official statement required by items 16.2 to
     Community law require the payment of a social security                   16.4 of Directive 2000/29/EC as to the country of origin
     benefit with conditions of entitlement like those for                    must be made by an official in the country of origin or