March 02, 2009

The European Commission can register for itself, even if it deprives the owner of an identical trademark of it

When it drafted the .eu regulation EC 874/2004, the Commission reserved for itself a (long) list of domain names.* One of them was For obvious reasons, Galileo Lebensmittel GmbH & Co. KG claimed before the Courf of First Instance that the Commission's decision to reserve should be annulled.
The CFI rejected the claim, as inadmissible. The company brought the case before the European Court of Justice (C-483/07). It was dismissed on February 17, 2009, for identical procedural reasons.

Under article 230 of the EC Treaty, proceedings may only be instituted by a person against whom a decision is addressed. The ECJ finds that the Commission's decision was not specifically against Galileo GmbH.

To the Court, the decision was not taken against Galileo for several reasons:
  • at the time the Commission reserved the name for itself, it could not know who could be affected by such decision: the Commission could not predict how many people would like to register the disputed name
  • the decision does not prevent Galileo GmbH from performing the contracts it has
  • there was no legal guarantee that Galileo GmbH could snap the name during the prior registration phase, as there are, the Commission noted (§ 40), at least 29 Community Trademarks that are formed with the word GALILEO alone (I wonder if the reasoning would have been the same had the complainant been the unique holder of a right on the sign... but this is, of course, purely hypothetical!). The prior registration phase did not grant any "right" to registration.

It can be noted that the ECJ does not reject the claim that the disputed decision affects the economic interests of the complainant (§ 47 - the complainant argued that the domain name is a unique marketable economic good at § 32), though it cannot hear it.

A question the case does not address, but I would like to raise: the Regulation states that "a specific domain name shall be allocated for use". Since is not used, isn't the Commission infringing the rule?

* Pursuant to article 9, "The Commission may ask the Registry to introduce domain names directly under the .eu TLD for use by the Community institutions and bodies. After the entry into force of this Regulation and not later than a week before the beginning of the phased registration period provided for in Chapter IV, the Commission shall notify the Registry of the names that are to be reserved and the bodies that represent the Community institutions and bodies in registering the names.

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