CELEX: C2002/144/37
Language: en
Date: 2002-06-15 00:00:00
Title: Case C-134/02: Reference for a preliminary ruling by the Gerechtshof (Douanekamer) te Amsterdam by judgment of that Court of 2 April 2002 in the case of Hoogenboom Production Ltd. against head of the Roosendaal Customs district

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