Curia and curiouser: law reports, authenticity and the Court of Justice

It's time for to leave Wonderland
and enter the real world

Taking a stroll along the cyber-highway this afternoon, tytoc collie chanced upon this little gem from the Curia website of the Court of Justice of the European Union:

"Disclaimer and warning

The texts and information contained in the Court's internet site are available free of charge for the purposes of public information.

The texts of the judgments, orders, Opinions and notices present on the site are subject to amendment; only the versions published in the "Reports of Cases before the Court of Justice and the Court of First Instance" or the "Official Journal of the European Union" are authentic [That is so unhelpful.  It takes an astonishingly long time to turn a piece of text which is good enough to post online into a printed document.  In last week's ruling of the ECJ in Case C-552/09 P Ferrero the court referred to two of its earlier decisions, C-398/07 P and C-57/08 P, decided on 7 May 2009 and 11 December 2008 respectively -- and both still unreported].

The information and texts available on this site may be reproduced provided the source is acknowledged [How must this be acknowledged? Is a direct hyperlink sufficient, or is there a preferred format for online and printed reproductions?]. Readers should be aware that certain parts of such information and texts might be protected under intellectual property law, in particular by copyright [Readers should also be aware that the fact that accessed material may be protected by IPR, and in particular copyright, does not mean that any unauthorised use constitutes an infringement of any such rights].

Links to the pages on this site are permitted provided that:

- the browser window does not contain any information other than that of the page of the present site to which the link is made and its address; [tytoc collie is happy to oblige, but Merpel can't help wondering as to what provisions of European Union or national law Curia might wish to evoke if this condition was not fulfilled]

- none of the information provided on this site is modified [Hmm, sniffs Merpel, it does say earlier that the site's contents are "subject to amendment", but it doesn't say by whom!]".

This member of the IPKat team lives in the present, and considers that life's too short to wait years and years for the printed versions of ECJ and General Court rulings.  Since the courts themselves are content to rely on the non-authentic versions which they continue to cite, we shouldn't lose too much sleep over it either. 

Merpel adds, material published in the Official Journal of the European Union might be authentic and only a month or two behind the actual rulings, but on the whole it's useless for any legal purposes.  An example taken at random is the official and presumably authentic note of a General Court decision from 11 February 2011, published online in the Official Journal on 24 March here:

Judgment of the General Court of 15 February 2011 — Yorma's v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S)


(Case T-213/09) ( 1 )

(Community trade mark — Opposition proceedings — Application for the Community figurative mark including the word element ‘yorma’s’ — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

(2011/C 95/11)

Language of the case: German

Parties

Applicant: Yorma’s AG (Deggendorf, Germany) (represented by: A. Weiß, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Schäffner, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Norma Lebensmittelfilialbetrieb GmbH & Co. KG (Nuremberg, Germany) (represented by: A. von Welser, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 February 2009 (Case R 1879/2007-1), concerning opposition proceedings between Norma Lebensmittelfilialbetrieb GmbH & Co. KG and Yorma’s AG

Operative part of the judgment

The Court:


1. dismisses the action;


2. orders Yorma’s AG to pay the costs.

There's no clue as to what the basis for the decision is, yet it's that which might tempt someone to look at the decision in the first place.  There's no link to the decision against which the appeal is made, and which will contain (i) the facts, (ii) the arguments and (iii) an illustration of the figurative mark -- all of which are more important for the reader than the padded pomposity of the defendant's full name ("Office for Harmonisation in the Internal Market (Trade Marks and Designs)") -- a name by which this Kat has never heard any of its employees refer to it in conversation.

It's 2011 and we're in a different world from 1952, when the Official Journal's most distant predecessor was first published -- yet series remains obstinately unchanged.  Let's have some joined-up thinking between the Curia and the Commission as to what functionality its official publications should have, what its users' interests are, and what are the trade-offs when trying to achieve the right balance of speed, accessibility, reliability and that great proportionaliser, cost.

Invisible images again: the Kat rages against the Curia

STOP PRESS: shortly after this item was posted, the "invisible" images miraculously appeared in the German version, but still haven't appeared in the French one.  Can some kind reader offer to assist Curia in these matters? Even if they were using primitive software like Blogger they wouldn't have these problems.


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While patent people pontificate on the linguistic issues that beset the countries of the European Union, trade mark practitioners and their clients still suffer in silence. But now, courtesy of tytoc collie, here comes a massive miaou of rage.

Today on the Curia website [note for non-Europeans: that's the website of the Court of Justice of the European Union] a decision of the General Court was posted. The case is T‑253/09 and T‑254/09, Wilo SE v Office de l’harmonisation dans le marché intérieur (marques, dessins et modèles) (OHMI). Alternatively it's Wilo SE v Harmonisierungsamt für den Binnenmarkt (Marken, Muster und Modelle) (HABM).  By now you may be suspecting that, of the 23 official languages of the European Union, this decision is posted in just two of them, French and German. Normally that would be quite enough to complain about, but this time it's much worse.  This case involves an application to register as a three-dimensional Community trade mark a sign representing the casing of a motor of a heating pump, for goods in Classes 7 and 11.  The examiner said it wasn't registrable because it was devoid of distinctive character; the Board of Appeal agreed.  And now, tytoc collie guesses, Wilo's appeal has been dismissed too.

When you click on to the webpage, you will discover that there are two representations of what tytoc collie knows to be images -- but all he can see is two boxes, each of which bears the legend "Image not found".   He has checked, using different internet browsers, in case the Curia website has been trained to refuse access to some of the more popular ones, and there is definitely nothing there.

Says tytoc collie, what on earth is the point of making available to the international community of trade mark users, owners and practitioners a report on the outcome of an appeal which is available in only two languages out of the official 23 and which does not even trouble to show the image which the applicant has been expending so much effort and energy trying to register?  He calls for the following action:

 (i) the person at Curia who is responsible for maintaining the website should please make the image available, if possible now;

(ii) the authority or person responsible for supervising the content of the Curia website should take the necessary measures to ensure that this doesn't happen again [it has happened on numerous occasions in the past too. Readers may remember this];

(iii) Curia should give the contact details of the person responsible, so that when things like this happen we all know whom to contact.  The Kat is not looking for a scapegoat to shoot -- he just wants to know whom he can gently contact and see, "Bonjour (or whatever), it's Le Chat calling.  Just thought you ought to know that. malheureusement, one of your illustrations has just dropped off the page ..."

Merpel says, I don't know what all the linguistic fuss is about.  The decision may only be available in French and German, but the little sign that says "Image not found" is definitely in English.

There's a little mini-poll on the top of the Kat's side bar.  Can you try the link to this appeal decision and then let him know if you can see the images?