References to the European Court of Justice

2009

Case and subject	Parties	Legislation	Pre-hearing	Hearing and after
List of references to the European Court of Justice made in 2009. Read down the first column to find the case number. Then read across the row to find the parties involved, legislation involved, details on the pre-hearing and information on the hearing outome.
C-553/09 That the CFI erred in its interpretation of the acquisition of distinctiveness character in a sign	BCS SpA v OHIM	Article 7(1)(b) and 7(3) of Community Trade Mark Regulation Council Regulation (EC) No 40/94	Comments by 15 March 2010 Deadline for observations by 06 April 2010
C-495/09 Whether customs authorities should detain goods bearing a Community trade mark that are in transit through the EU from a non-Member State to another non-Member State, in the absence of evidence that they will be diverted onto the market in Member States.	Nokia Corporation v Her Majesty's Commissioners of Revenue and Customs and The International Trade Mark Association	Article 2(1)(a)(i) of Regulation 1383/2003 concerning Customs action against goods suspected of infringing certain intellectual property right and the measures to be taken against goods found to have infringed such rights.	Comments by 02 February 2010. Deadline for observations by 29 March 2010	Opinion 3 February 2011
C-482/09 Interpretation of "acquiesced"	Budejovicky Budvar Narodni Podnik v Anheuser-Busch Inc.	Article 9(1) of Council Directive 89/104/EEC to approximate the laws of the Member States relating to Trade Marks	Comments by 11 February 2010 Deadline for observations by 6 April 2010	Opinion 3 February 2011
C-479/09 Application to restore a Community trade mark whose registration had elapsed by reason of non-payment of renewal fees	Evets Corp. v OHIM	Article 78(2) of Council regulation (EC) No 40/94 concerning the Community Trade Mark Regulation.	Comments by 18 February 2010 Deadline for observations by UK 10 March 2010
C-462/09 Where the seller is established in a different member state to the buyer, who should be regarded under national law as owing the fair compensation for private copying to the right holder and in which of the member states involved in the transaction the compensation is owed.	Stichting de Thuiskopie v Mijndert van der Lee, Hananja van der Lee and Opus Supplies Deutschland GmbH	Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights.	Comments by 26 January 2010. Deadline for observations by 22 March 2010.	Opinion 10 March 2011
C-461/09 That the CFI (now General Court) erred in its application of tests for defining the relevant public, evaluating the degree of similarity between the goods and evaluating the degree of similarity between the signs	The Wellcome Foundation Ltd v OHIM	Articles 8(1)(b) and 52(1)(a) of Regulation 40/94 "the Community Trade Mark Regulation".	Comments by 1 March 2010 Deadline for observations by 23 March 2010
C-459/09 That the CFI erred in failing to take into account that the appellant’s trade mark is a Community Trade mark, that it failed to establish the relevant public for the assessment of the likelihood of confusion and that it wrongly held certain documents inadmissible.	Dominio de la Vega, S. L. v OHIM	Article 8(1)(b) and Article 8(2)(i) and (ii) of former Regulation (EC) No 40/94 on the Community trade mark, now Council Regulation (EC) No 207/2009 on the Community trade mark.	Comments by 18 February 2010 Deadline for observations by 10 March 2010
C-449/09 Interpretation of the exclusive right of a trade mark proprietor to prevent all third parties not having his consent from importing or exporting goods under any sign which is identical with the trade mark	Canon Kabushiki Kaisha v IPN Bulgaria	Article 5 and Article 7 of Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trade Marks	Comments by 22 March 2010 Deadline for observations by UK 18 May 2010
C-448/09 Extract from Official Journal That the CFI erred in its interpretation of Article 8(1)(b) on the relative grounds of refusal and Article 45 on registration of the Community trade mark Regulation	Royal Appliance International GmbH v OHIM	Articles 8(1)(b) and 45 of the Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark	Comments by 15 February 2010 Deadline for observations by 10 March 2010
C-446/09 The introduction of goods suspected of infringing certain intellectual property rights into a Member State of the European Union.	Koninklijke Philips Electronics N.V. v Lucheng Meijing Industrial Company Ltd, Far East Sourcing Ltd, Röhlig Hong Kong Ltd, Rohlig Belgium N.V.	Article 6(2)(b) of Council Regulation (EC) No 3295/94 of 22 December 1994 concerning measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods.	Comments by 13 January 2010. Deadline for observations by 05 March 2010	Opinion 3 February 2011
C-431/09 and C-432/09 Interpretation of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission	N.V. Airfield, B.V. Canal Digitaal v C.V.B.A. Belgische Vereniging van Auteurs, Componisten en Uitgevers	Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright.	Comments by 29 December 2009. Deadline for observations by 25 February 2010
C-427/09 How the expiry date of supplementary protection certificates for medicinal products should be determined	Generics (UK) Limited v Synaptech Inc	Article 13(1) of Regulation (EEC)1768/92 concerning the creation of a supplementary protection certificate for medicinal products.	Comments by 24 December 2009. Deadline for observations by 22 February 2010	Opinion issued 31 March 2011
C-406/09 Enforcement of judgments in civil and commercial matters	Realchemie Nederland BV v Bayer CropScience AG	Article 14 of Directive 2004/48 on the enforcement of intellectual property rights	Comments by 16 December Deadline for observations by 12 February 2010	Opinion issued 5 April 2011
C-400/09 Interpretation of the requirement that in the repackaging of medicinal products imported in parallel, the repackager should should feature on the package labelling.	Orifarm, Orifarm Supply, Handelsselskabet, and Ompackningsselskabet v Merck & Co. Inc, Merck Sharp & Dohme B.V and Merck Sharp & Dohme	Articles 28 and 30 of the EC Treaty on the free movement of goods. The Trade Marks Directive (Directive 89/104/EEC) in particular Articles 5 and 7. Directive 2001/83/EC. Directive 2003/94/EC	Comments by 16 December Deadline for observations by 12 February 2010
C-393/09 Whether an application for authorisation for the collective administration of copyrights to computer programs can include rights to use computer programs as works by means of cable transmission and by television broadcast.	Bezpecnostni Softwarova Asociace v Svaz Softwarove Ochrany	Article 1(2) of Council Directive 91/250/EEC on the Legal Protection of Computer Programs	Comments by 3 December Deadline for observations by UK 29 January 2010
C-387/09 Interpretation of ‘fair compensation’ for private copying	Entidad de Gestión de Derechos v Magnatrading S.L.	Article 5(2)(b) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society	This case has been stayed pending the judgement in case C-467/08 SGAE
C-364/09 & C-365/09 Whether a requirement to maintain the availability of an indication of geographic origin is an absolute ground for refusal to register a Community trade mark	Mineralbrunnen Rhon-Sprudel Egon Schindel GmbH v OHIM	Article 7(1)(c) of Regulation 40/94	Comments by 23 November 2009 Deadline for observations by UK 17 December 2009
C-342/09 That trademarks which share the same initial elements are confusingly similar and therefore cannot coexist.	Victor Guedes - Indústria e Comércio, SA v OHIM	Article 8 (1)(b) and (5) of the Community Trade Mark Regulation 40/94	Comments by 23 November 2009 Deadline for observations by UK 17 December 2009
C-332/09 Relevant date for assessment of the circumstances and perceptions to be taken into account when applying Article 51(1)(a) of Regulation 40/94	Frosch Touristik GmbH v OHIM	51(1)(a) of Regulation (EC) No 40/94	Comments by 9 November 2009 Deadline for observations by UK 4 December 2009
C-324/09 Use of keywords identical to registered trade marks in sponsored links on third party search engines	L’Oréal SA, Lancome Parfums et Beaute & Cie, Laboratoire Garnier & Cie, L’Oréal (UK) Limited v Ebay International A.G., Ebay Europe S.A.R.L., Ebay (UK) Ltd, Stephen Potts, Tracey Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana BI	Articles 5(1), (2),(3)(b),(c),(d), (6),6(1)(b),(c) and Article 7 of First Council Directive 89/104/EC (The Trade Marks Directive) and Articles (9)(1)-(2), 12 and 13 of the Council Regulation 40/94 on the Community Trade Marks, Community European Parliament and Council Directive 2000/31/EC and European Parliament and Council Directive 2004/48/EC	Comments by 30 October 2009 Deadline for observations by UK 10 December 2009
C-323/09 The purchase of keywords similar or identical with registered Trade Marks to be used on internet searches	Interflora Inc. and Interflora British Unit v Marks and Spencer PLC and Flowers Direct Online LTD	Article 5(1)(a) of the Trade Marks Directive (Council Directive 89/104/EEC) and Article 9(1)(a) of the Community Trade Marks Regulation (Council Regulation 40/94)	Comments by 30 October 2009 Deadline for observations by UK 10 December 2009	Opinion 24 March 2011
C-282/09 That the CFI has failed to provide reasons, by not criticising the relevant decisions of OHIM for lacking a statement of reasons. Also, that the CFI erred in its application of Article 7(1)(b) of Regulation 40/94 on the Community trademark regarding various goods.	Caisse Federal Europe(CFCMCE) V OHIM	Article 7(1)(b) of Regulation 40/94 on the community trade mark	Deadline for UK intervention 5 November 2009
C-265/09 CFI held that the fourth Board of Appeal of OHIM infringed Article 7(1)(b) (trademarks devoid of distinctive character not to be registered) of Regulation (EC) No 40/49 on the Community trade mark.	Borco-Marken-Import Matthiesen GmbH & Co KG v OHIM	Article 7(1)(b) of Council Regulation (EC) No 40/94 (Regulation No 40/94)	Deadline for UK intervention 5 November 2009
C-263/09 That the CFI erred in its interpretation of Article 52(2) of Community Trade Mark Regulation40/94 and Article 8(3) of Codice della Proprietà Industriale (Italian Industrial Property Code)	Edwin Co. Ltd v OHIM and Elio Fiorucci	Article 52(2) of Community Trade Mark Regulation40/94 and Article 8(3) of Codice della Proprietà Industriale (Italian Industrial Property Code)	Comments by 28 September 2009 Deadline for observations by UK 22 October 2009
C-254/09 The appellant had opposed the registration of the word mark “CK CREACIONES KENNYA”. The opposition had been dismissed by both OHIM and CFI. The appellant claims that the CFI, by not taking into account all the factors specific to this case, went against the case law previously used to interpret Article 8(1) of the Community Trade Mark Regulation 40/94. Further, by failing to take into account the reputation of the opposing marks, the CFI mis-interpreted Article 8(5) of the Community Trade Mark Regulation 40/94.	Calvin Klein Trademark Trust v OHIM	Articles 8(1) and 8(5) of the Community Trade Mark Regulation 40/94.	Comments by 14 September 2009 Deadline for observations by UK 9 October 2009
C-235/09 That the Cours d’Appel erred in not extending a sanction to the whole of the EC	French Republic v DHL Express France	Article 98 of Regulation (EC) No 40/94	Comments by 21 August 2009 Deadline for observations by UK19 October 2009
C-229/09 Can a supplementary protection certificate be granted if the marketing authorisation is a provisional authorisation obtained under Article 8(1) of the Directive?	Rechtsanwaltssozietat Lovells, Dusseldorf v Bayer CropScience AG Monheim	Article 8(1) of Directive 91/414/EEC and Article 3(1)(b) of Regulation 1610/96	Comments by 20 August 2009 Deadline for observations by UK 16 October 2009	Hearing notification (59Kb)
C-219/09 What degree of discretion is granted to a Member State under Articles 17 and 19 of Directive 98/71/EC and is this affected by unauthorised sale of a similar product by a third party?	Vitra Patente AG v High Tech Srl	Articles 17 and 19 of Directive 98/71/EC	Proceedings held until judgment delivered in case C-168/09
C-214/09 This case concerns the interpretation of Regulation 207/2009 on the Community Trade Mark (codified version).	Anheuser-Busch Inc v OHIM	Regulation No. 207/2009 (the Community Trade Mark Regulation):Article 41(2), Article 42(2), and Article 76(2).	Comments by 1 September 2009 Deadline for observations by UK 25 September 2009
C-195/09 Can a Supplementary Protection Certificate be granted for a product placed on the market in the Community without going through the safety and efficacy tests required by Directive 65/65/EEC?	Synthon BV v Merz Pharma GmbH & Co KG	Articles 2, 13 and 19 of Council Regulation 1768/92	Comments by 27 July 2009 Deadline for observations by UK 23 September 2009	Opinion 31 March 2011
C-193/09 That the CFI erred in its interpretation of Article 74(2) of the Community Trade Mark Regulation 40/94 by not using its discretion to allow late filed evidence. Further that it erred in its interpretation of Article 61(2) and sentence 2 of Article 73 by not allowing the applicant to submit its observations before the adoption of the contested decision.	Kaul GmbH v OHIM	Articles 61, 73 and 74(2) of the Community Trade Mark Regulation (Regulation 40/94)	Comments by 1 September 2009 Deadline for observations by UK 25 September 2009
C-168/09 What degree of discretion is granted to a Member State under Articles 17 and 19 of Directive 98/71/EC and is this affected by unauthorised sale of a similar product by a third party?	Flos SpA v Semeraro Casa and Famiglia SpA	Articles 17 and 19 of Directive 98/71/EC	Comments by 13 July 2009 Deadline for observations by UK 2 September 2009	Hearing notification (59Kb) Judgement
C-136/09 Following the judgment in C-306/05, the court is asked for further clarification of Article 3(1) of Directive 2001/29/EC. The referring court asks if the installation of television sets in hotel rooms, without any other action or intervention by the hotelier, constitutes communication of the work to the public within the meaning of the Directive.	Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis AE	Article 3(1) of Directive 2001/29/EC	Comments by 4 June 2009 Deadline for observations by UK 31 July 2009
C-127/09 A request for clarification of the expression "put on the market" in Article 13(1) of Council Regulation 40/94 and Article 7 of the First Council Directive 89/104/EEC. The defendant, who is not one of the applicant’s authorised dealers, supplied tester packages of the applicant’s perfumes to a retailer in Germany. Testers are made available to authorised dealers only and are not for re-sale, being for advertising only. There is no transfer of ownership. Checks by the applicant showed that the testers had been delivered to an authorised agent in Singapore and further purchases were traced to the Middle East. The applicant contends that such testers had not been "put on the market" within the meaning of the Directive and that, therefore, there had been no exhaustion of rights. The applicant further contends that the perfumes at issue had not been put on the market for the first time in the European Union or the European Economic Area with the consent of the trade mark proprietor.	Coty Prestige Lancaster Group GmbH v Simex Trading AG	Article 13(1) of Council Regulation 40/94 and Article 7 of the First Council Directive 89/104/EEC.	Comments by 5 June 2009 Deadline for observations by UK 3 August 2009
C-96/09 Extract from Official Journal (708Kb) That the CFI erred in its interpretation of the qualitative and quantitative requirements of “use in the course of trade” under Article 8(4) of the Trade Mark Regulation by: Interpreting it to mean any use outside the private sphere (including “free of charge” shipments) Allowing use after the application to be taken into account.	Anhauser Bausch, Inc v OHIM	Articles 8(4) and Article 74(1) of the Trade Mark Regulation (Regulation 40/94)	Comments by 1 June 2009 Deadline for observations by UK 26 June 2009
C-91/09 Extract from Official Journal (171Kb) Is it use, for the purposes of Article 5(1)(a) of the Trade Mark Directive, for a third party to use a sign identical to a trade mark as a search engine keyword, so that when the sign is input, the third party’s website, advertising identical goods or services, appears in a block separate from the search result listings. The link is listed as a sponsored link and the advertisement does not contain any reference to the proprietor or the products it is offering for sale.	Eis.de GmbH v BBY Vertriebsgesellschaft mBH	Article 5(1)(a) of Trade Mark Directive (Directive 89/104/EEC)	stayed pending the judgments in joined cases C-236/08 to C-238/08 and case C-278/08
C-80/09 That the CFI wrongly interpreted Article 7(1) (b) and (c) of the Community Trade Mark Regulation by classifying the mark “Patentconsult” as a neologism and also wrongly assessed the exclusively descriptive character of this mark. Also, the CFI were wrong to consider the respondent’s earlier decision concerning the mark ‘Netmeeting’ and the judgment of ECJ case C-383/99 P concerning the mark ‘Baby dry’ were not relevant.	Volker Mergel and Others v OHIM	Articles 7(1)(b) and (c) of the Community Trade Mark Regulation (Regulation 40/94)	Comments by 30 April 2009 Deadline for observations by UK 28 May 2009
C-78/09 Extract from Official Journal (702Kb) That the CFI breached Article 7(1)(b) of the Community Trade Mark Regulation by disregarding the inherent distinctiveness of the mark. Further, distinctiveness was maintained and reinforced by the use made of the mark by the appellant. Also, the appellant claims that the CFI wrongly interpreted the criteria laid down in case law on distinctiveness acquired through use.	Compagnie des Mouches SA v OHIM	Article 7 (1)(b) of the Community Trade Mark Regulation (Regulation 40/94)	Comments by 13 May 2009 Deadline for observations by UK 11 June 2009
C-66/09 The referring court asks whether the holder of a European Community authorisation to market a medicinal product in Lithuania granted on 8 June 2001 can apply for a SPC within 6 months of 1 May 2004, the date when Lithuania joined the EU rather than 6 months from the date that the authorisation was granted in accordance with Article 7(1) of Council Regulation (EC) No 1768/92	Kirin Amgen. Inc. v Lietuvos Respublikos valstybinis patentu biuras (Lithuanian State Patent Bureau)	Article 3(b), 7 and 19(2) of Council Regulation (EC) No 1768/1992	Comments by 9 April 2009 Deadline for UK observations 10 June 2009	Hearing notification (66Kb) Opinion
C-51/09 Extract from Official Journal (55Kb) That the CFI misapplied Article 8(1)(b) of the Community Trade Mark Regulation and erred in its finding that there was a similarity between the trade mark ’Barbara Becker’ for the appellant and ‘Becker’ for the defendant.	Barbara Becker v OHIM	Article 8(1)(b) of Community Trademark Regulation(Regulation 40/94)	Comments by 17 April 2009 Deadline for UK observations 14 May 2009
C-48/09 Extract from Official Journal (56Kb) That, the CFI, independently of the criteria laid down in Philips (C-299/99), interpreted Article 7(1)(e)(ii) of the Community Trade Mark Regulation in such a way as to preclude any shape which performs a function from trade mark protection. Further, that the CFI applied incorrect criteria in the identification of the essential characteristics of a 3D mark and also that it applied an incorrect functionality test.	Lego Juris A/S v OHIM	Article 7(1)(e)(ii) of the Community Trade Mark Regulation (Regulation 40/94)	Comments by 17 April 2009 Deadline for UK observations by 14 May 2009	Advocate General's Opinion delivered 26 January 2010
C-23/09 That the CFI erred in its application of Article 8(1)(b) of the Community Trade Mark Regulation as the conflicting trade marks did not display the minimum level of similarity needed to lead to confusion. Also, the CFI erred in its finding that the distinctiveness of the first mark was an essential requirement of the likelihood of confusion and failed to treat the conceptual difference between the opposing marks as being of primary importance.	Ecoblue AG v OHIM	Article 8(1)(b) of the Community Trade Mark Regulation (Regulation 40/94)	Comments by 30 April 2009 Deadline for observations by UK 28 May 2009
E-1/09 That Liechtenstein, under its domestic legislation concerning residence requirements (affecting patent lawyers and other professional individuals) has failed to fulfil its obligations under Articles 28 and 31 of the EEA Agreement.	EFTA Surveillance Authority v The Principality of Liechtenstein	Articles 28 and 31 of the EEA (European Economic) Agreement	Comments by 14 April 2009 Deadline for UK observations 26 May 2009