CELEX: C2003/239/02
Language: en
Date: 2003-10-04 00:00:00
Title: Case C-323/03: Action brought on 24 July 2003 by the Commission of the European Communities against the Kingdom of Spain

4.10.2003                 EN                       Official Journal of the European Union                                         C 239/1
                                                                        I
                                                                 (Information)
                                                    COURT OF JUSTICE
                                                             COURT OF JUSTICE
Reference for a preliminary ruling by the High Court of                    Action brought on 24 July 2003 by the Commission of
Justice (England & Wales), Chancery Division, by order                     the European Communities against the Kingdom of Spain
of that court dated 6 June 2003, in the case of Dyson Ltd
                 against Registrar of Trade Marks
                                                                                                  (Case C-323/03)
                           (Case C-321/03)
                                                                                                  (2003/C 239/02)
                           (2003/C 239/01)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                      An action against the Kingdom of Spain was brought before
Justice (England & Wales), Chancery Division, dated 6 June                 the Court of Justice of the European Communities on 24 July
2003, which was received at the Court Registry on 24 July                  2003 by the Commission of the European Communities,
2003, for a preliminary ruling in the case of Dyson Ltd and                represented by I. Martínez del Peral and K. Simonsson, acting
Registrar of Trade Marks on the following questions:                       as Agents, with an address for service in Luxembourg.
1.     In a situation where an applicant has used a sign (which
       is not a shape) which consists of a feature which has a
       function and which forms part of the appearance of a                The applicant claims that the Court should:
       new kind of article, and the applicant has, until the date
       of application, had a de facto monopoly in such articles,
       is it sufficient, in order for the sign to have acquired a          1.   declare that, by maintaining in force rules which:
       distinctive character within the meaning of Article 3(3)
       of Directive 89/104/EC (1), that a significant proportion
       of the relevant public has by the date of application for                —    allow maritime transport services in the Vigo estuary
       registration come to associate the relevant goods bearing                     to be entrusted to a single operator for a period of
       the sign with the applicant and no other manufacturer?                        20 years and which include as a criterion for the
                                                                                     award of the right to operate the services experience
                                                                                     in transport in the Vigo estuary, which favours the
2.     If that is not sufficient, what else is needed in order for                   existing operator;
       the sign to have acquired a distinctive character and, in
       particular, is it necessary for the person who has used the
       sign to have promoted it as a trade mark?
                                                                                —    allow seasonal transport services with the islands or
                                                                                     regular transport services between continental ports
                                                                                     to be subject to public-service obligations;
( 1) First Council Directive 89/104/EEC of 21 December 1988 to
     approximate the laws of the Member States relating to trade
     marks, OJ L040, 11.02.1989, p. 1-7.
                                                                                —    permit the introduction of a more restrictive system
                                                                                     than that in force on the date on which the
                                                                                     Regulation entered into force (January 1993), that is
                                                                                     to say, the Decision of 11 June 1984;
 ---pagebreak--- C 239/2                 EN                          Official Journal of the European Union                                          4.10.2003
       —    were never the subject of consultation with the                 The appellant claims that the Court should:
            Commission before being approved,
       the Kingdom of Spain has infringed Articles 1, 4, 7 and 9
       of Regulation No 3577/92 (1) and has failed to fulfil its            1.    quash the order of the Court of First Instance (Second
       obligations under that regulation and the EC Treaty.                       Chamber) delivered on 28 April 2003 in Case T-15/03,
                                                                                  the applicant having shown all the requisite care and
                                                                                  attention for the transmission of documents to the Court
2.     order the Kingdom of Spain to pay the costs.                               of First Instance;
                                                                            2.    consequently, to refer the case back to the Court of First
Pleas in law and main arguments                                                   Instance for a declaration that the action for annulment
                                                                                  in Case T-15/03 is admissible, and for proceedings to
                                                                                  continue before the Court of First Instance on the basis
The Vigo estuary is within the territorial scope of Regulation                    of the claims submitted in the application against the
No 3577/92. That regulation was not designed to regulate                          decision of the Second Board of Appeal of OHIM of
competence in a specific market. The fact that sea traffic                        24 October 2002 in Case R 918/2001-2, concerning
between the ports of the Vigo estuary is local does not preclude                  opposition proceedings between José Luis Zuazaga Meabe
the application of the principle of freedom to provide services.                  and Banco Bilbao Vizcaya Argentaria S.A.
( 1) Council Regulation (EEC) No 3577/92 of 7 December 1992
     applying the principle of freedom to provide services to maritime
     transport with Member States (maritime cabotage), OJ L 364,
     12.12.1992, p. 7.
                                                                            Pleas in law and main arguments
                                                                            —     Infringement of Article 45 of the Statute of the Court of
                                                                                  Justice: the applicant pleads the existence of unfavourable,
                                                                                  unforeseen and unavoidable circumstances which were
Appeal brought on 25 July 2003 by José Luis Zuazaga                               beyond his control, which prove the existence of unfore-
Meabe against the order delivered on 28 April 2003 by                             seeable circumstances or force majeure. The confirmation
the Court of First Instance of the European Communities                           by registered letter lodged with the Spanish postal services
(Second Chamber) in Case T-15/03 between José Luis                                on 7 January 2003 of the application, transmitted to the
Zuazaga Meabe and the Office for Harmonisation in                                 Court of First Instance by fax on 3 January 2003, was
the Internal Market (OHIM), the other party to the                                ineffective for reasons beyond the applicant’s control.
proceedings before the Board of Appeal being Banco de                             The principle of proportionality therefore requires the
                 Bilbao Vizcaya Argentaria S.A.                                   Court of First Instance to adopt a flexible approach.
                         (Case C-325/03 P)
                                                                            —     Infringement of Articles 102 of the Rules of Procedure of
                                                                                  the Court of First Instance and Article 81(2) of the Rules
                           (2003/C 239/03)                                        of Procedure of the Court of Justice: the applicant submits
                                                                                  that, to the ordinary time-limit extended by ten days on
                                                                                  account of distance may be allowed an additional ten
                                                                                  days for a definite confirmation of the document trans-
                                                                                  mitted by fax.
An appeal against the order delivered on 28 April 2003 by the
Second Chamber of the Court of First Instance of the European
Communities in Case T-15/03 between José Luis Zuazaga
Meabe and the Office for Harmonisation in the Internal Market               —     Infringement of Article 103 of the Rules of Procedure of
was brought before the Court of Justice of the European                           the Court of First Instance and Article 82 of the Rules of
Communities on 25 July by José Luis Zuazaga Meabe, rep-                           Procedure of the Court of Justice: the applicant claims
resented by José Antonio Calderón Chavero and Natalia Moya                        that the principle of proportionality can and should be
Fernández, with an address for service in Luxembourg, the                         applied to set the deadline in a flexible manner in cases
other party to the proceedings before the Board of Appeal                         such as this, where the applicant sent the document in
being Banco de Bilbao Vizcaya Argentaria S.A.                                     advance by fax.