Case C-311/05 P: Appeal brought on 8 August 2005 by Naipes Heraclio Fournier, S.A. against the judgment delivered on 11 May 2005 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-160/02 to T-162/02 between Naipes Heraclio Fournier, S.A. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (intervener: France Cartes SAS)
Date: 2005-10-01
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, gaming, leisure, trade-mark law

1.10.2005

EN

Official Journal of the European Union

C 243/11

Reference for a preliminary ruling from the Il Tribunale di
Bergamo by order of that court of 28 June 2005 in D.I.A
Srl in liquidation v Cartiere Paolo Pigna SpA

(Case C-309/05)

(2005/C 243/17)

tive 2001/95/EC of the European Parliament and of the
Council of 3 December 2001 on general product safety, (1)
or, in any event, by failing to communicate the said provi-
sions to the Commission, the Grand Duchy of Luxembourg
has failed to fulfil its obligations under Article 21(1) of that
directive;

2. order the Grand Duchy of Luxembourg to pay the costs.

(Language of the case: Italian)

Pleas in law and main arguments

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Il Tribunale di Bergamo of
28 June 2005, received at the Court Registry on 4 August
2005, between D.I.A Srl in liquidation and Cartiere Paolo Pigna
SpA on the interpretation of Articles 17 and 19 of Council
Directive 86/653 of 18 December 1986 for the reasons already
set out by the Corte di Cassazione, Sezione Lavoro, in Order
No 20410 (1) of 18 October 2004.

(1) Honyvem Informazioni Commerciali srl v Mariella De Z|otti (Case C-

465/04) OJ C 31, of 05.02.2005, page 4.

The Grand Duchy of Luxembourg has yet to take the measures
which it was obliged to put in place by 15 January 2004 in
relation to Directive 2001/95 and in any event has failed to
communicate those measures to the Commission.

(1) OJ L 11 of 15.01.2002, p. 4

Action brought on 8 August 2005 by Commission of the
the Grand Duchy of
European Communities against

Luxembourg

(Case C-310/05)

(2005/C 243/18)

(Language of the case: French)

Appeal brought on 8 August 2005 by Naipes Heraclio
Fournier, S.A. against the judgment delivered on 11 May
2005 by the Third Chamber of the Court of First Instance
of the European Communities in Joined Cases T-160/02 to
T-162/02 between Naipes Heraclio Fournier, S.A. and the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM), (intervener: France Cartes
SAS)

(Case C-311/05 P)

(2005/C 243/19)

(Language of the case: Spanish)

the Grand Duchy of Luxembourg was
An action against
brought before the Court of Justice of the European Commu-
nities on 8 August 2005 by the Commission of the European
Communities, represented by Marie-José Jonczy and Antonio
Aresu, acting as Agents, with an address for service in Luxem-
bourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-

An appeal against the judgment delivered on 11 May 2005 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in Joined Cases T-160/02 to T-162/02
between Naipes Heraclio Fournier, S.A. and the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs) (OHIM), (intervener: France Cartes SAS), was brought
before the Court of Justice of the European Communities on 8
August 2005 by Naipes Heraclio Fournier, S.A., represented by
E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers.

C 243/12

EN

Official Journal of the European Union

1.10.2005

The appellant claims that the Court should set aside the judg-
ment under appeal and uphold its claims.

Grounds of appeal and main arguments

The appeal is founded on three grounds of appeal:

The first ground of appeal alleges infringement by the Second
Board of Appeal of the principle of legality and of the rights of
defence of Naipes Heraclio Fournier, S.A.. The Court of First
Instance should not have confined itself to consideration of the
legality of the contested decision but should have carried out a
new and thorough examination of the case in the light of the
wording of the contested decisions and the specific claims of
the applicant and the intervener.

The second ground of appeal alleges that the Second Board of
Appeal
infringed the principle of legality and Article 7(1)(b)
and (c) of Regulation No 40/94. (1) The Court of First Instance
exceeded its jurisdiction in that it rectified and corrected with
its own arguments the substantive errors made by the Second
Board of Appeal
in connection with the application of the
grounds of refusal in Article 7(1)(b) and (c) of Regulation No
40/94 to the appellant's figurative marks.

The third ground of appeal alleges that the judgment under
appeal fails to state grounds for the purposes of Article 253
EC. The judgment under appeal does not show clearly and
unequivocally the reasons which led the Court to hold that the
absolute ground for refusal in Article 7(1)(b) of Regulation No
40/94 applied to the applicant's figurative marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11 of 14.1.1994, p. 1).

Appeal brought on 8 August 2005 by TeleTech Holdings,
Inc. against the judgment delivered on 25 May 2005 by
the Second Chamber of the Court of First Instance of the
European Communities in Case T-288/03 between Tele-
Tech Holdings, Inc. and the Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM),
(intervener: TeleTech International, S.A.)

(Case C-312/05 P)

(2005/C 243/20)

(Language of the case: Spanish)

An appeal against the judgment delivered on 25 May 2005 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-288/03 between TeleTech Hold-
ings,
Inc. and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), (intervener: Tele-
Tech International, S.A.), was brought before the Court of
Justice of the European Communities on 8 August 2005 by
TeleTech Holdings, Inc, represented by E. Armijo Chávarri and
A. Castán Pérez-Gómez, lawyers.

The appellant claims that the Court should set aside the judg-
ment under appeal and uphold its claims.

Grounds of appeal and main arguments

This appeal is founded on two grounds of appeal:

The first ground of appeal is based on the premiss that the
Court of First Instance infringed Article 52 of Regulation No
40/94 (1) (in conjunction with Article 8(1)(b) of that regulation)
by having misinterpreted that provision in breach of the prin-
ciple of coexistence and equivalence between Community
marks and national marks. This ground of appeal
further
complains of an infringement, also on account of incorrect
interpretation, of Article 74 of Regulation No 40/94 and of the
appellant's rights of defence.

The second ground of appeal alleges that the Court of First
Instance's interpretation of Article 8(1)(b) Regulation No 40/94
is vitiated by an error of law resulting from the Court's incor-
rect application of the test relating to the perception of the
relevant public when assessing the likelihood of confusion
between the conflicting marks.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11 of 14.1.1994, p. 1).