Case C-129/06 P: Appeal brought on  4 March 2006  by Autosalone Ispra Snc against the judgment delivered on  30 November 2005  in Case T-250/02 Autosalone Ispra Snc v European Atomic Energy Community
Date: 2006-05-06
Institutions: Court of Justice
Subjects: EAEC, General Court (EU), action for annulment (EU), damages, flood, liability

6.5.2006

EN

Official Journal of the European Union

C 108/9

Form of order sought

— order the Grand-Duchy of Luxembourg to pay the costs.

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2002/65/EC of the European Parliament and of the
Council of 23 September 2002 concerning the distance
marketing of consumer financial services and amending
Council Directive 90/619/EEC and Directives 97/7/EC and
98/27/EC (1) or, in any event, by failing to communicate
those provisions to the Commission, the Grand-Duchy of
Luxembourg has failed to fulfil its obligations under Article
21(1) of that Directive;

— order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The time-limit for implementing Directive 2002/65/EC expired
on 9 October 2004.

(1) OJ 2002 L 271, p.16

Action brought on 3 March 2006 — Commission of the
European Communities v Grand-Duchy of Luxembourg

(Case C-128/06)

(2006/C 108/15)

Language of the case: French

Parties

Pleas in law and main arguments

time-limit

The
expired on 12 October 2004.

for

implementing Directive 2003/124/EC

(1) OJ 2003 L 339, p.70

Appeal brought on 4 March 2006 by Autosalone Ispra Snc
against the judgment delivered on 30 November 2005 in
Case T-250/02 Autosalone Ispra Snc v European Atomic
Energy Community

(Case C-129/06 P)

(2006/C 108/16)

Language of the case: Italian

Parties

Appellant: Autosalone Ispra Snc (represented by: B. Casu, Avvo-
cato)

Other party to the proceedings: European Atomic Energy Com-
munity,
the European
Communities; Agent: E. de March, assisted by A. Dal Ferro,
Avvocato.

represented by the Commission of

Applicant: Commission of the European Communities (repre-
sented by: D. Maidani and G. Braun, Agents)

Form of order sought

Defendant: Grand-Duchy of Luxembourg

— Declare that the appeal is admissible

Form of order sought

— declare that, by failing to adopt the laws, regulations and
to comply with
administrative provisions necessary
Commission Directive 2003/124/EC of 22 December 2003
implementing Directive 2003/6/EC of the European Parlia-
ment and of the Council as regards the definition and
public disclosure of inside information and the definition of
market manipulation (1) and,
in any event, by failing to
communicate them to the Commission, the Grand-Duchy
of Luxembourg has failed to fulfil its obligations under that
directive;

— Set aside the judgment of the Court of First Instance of the

European Communities in Case T-250/02

— Order that Case T-250/02 be referred back to the Court of
First Instance so that, once appropriate measures of inquiry
have been made, including those made by the court of its
own motion, such as the taking of expert evidence, on the
spot checks and the hearing of witnesses, the court may
deliver a new judgment granting the forms of order sought
by the appellant in its pleadings in the proceedings at first
instance

— Order the Commission to pay all the costs of the proceed-

ings, including those incurred at first instance

C 108/10

EN

Official Journal of the European Union

6.5.2006

Pleas in law and main arguments

contested goods and rejected the trade mark application No
55962 for all the contested goods;

The appellant claims that the judgment of the Court of First
Instance is flawed by reason of:

incorrect legal characterisation of the case as a result of misre-
presentation and distortion of the evidence;

infringement of Community rules of procedure relating to the
taking of evidence.

Appeal brought on 27 February 2006 by Castellblanch, SA
against the judgment of the Court of First Instance deliv-
ered on 8 December 2005 in Case T-29/04: Castellblanch,
SA v Office of Harmonisation in the Internal Market
(OHIM), Champagne Louis
(Trade Marks and Designs)

Roederer, SA

(Case C-131/06 P)

(2006/C 108/17)

Language of the case: English

Parties

Appellant: Castellblanch, SA (represented by: F. de Visscher, E.
Cornu, E. De Gryse and D. Moreau, avocats)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Champagne
Louis Roederer, SA

Form of order sought

The appellant claims that the Court should:

— annul the judgment of the Court of First Instance of 8
December 2005 in case T-29/04 Castellblanch, SA v Office
of Harmonisation in the Internal Market (Trade Marks and
insofar that it found that the Second Board of
Designs),
Appeal of
the Office of Harmonisation in the Internal
Market (Trade Marks and Designs) did not infringe Article
8(1)(b) of Council Regulation (EC) No 40/94 (1) of 20
December 1993 on the Community trade mark in adopting
its decision of 17 November 2003 (Case R0037/2002-2)
and to give final judgment in the matter and therefore:

— to annul the decision of the Second Board of Appeal of the
(Trade
Office of Harmonisation in the Internal Market
Marks and Designs) of 17 November 2003 (Case R0037/
2000-2) insofar as it dismissed the appeal of Castellblanch
SA and upheld the opposition No B 15703 for all the

— order the Office of Harmonisation in the Internal Market
(Trade Marks and Designs) to bear the costs both at first
instance and on appeal.

Pleas in law and main arguments

The judgment of the Court of First Instance infringes the Com-
munity Law insofar as the Court of First Instance took into
account two new documents that were produced for the first
time before it, which the Court of First Instance should have
declared inadmissible.

The Appellant does not appeal the contested judgment with
regard to its first plea in law in its application for annulment
before the Court of First Instance, insofar as the Court found
that the proprietor of the earlier trade mark had given sufficient
proof of the use of the earlier trade mark in the territory
concerned. However, the Appellant criticises the fact that the
Court did not take into consideration the nature of the use of
the earlier trade mark when comparing the signs, and, in par-
ticular, did not take into consideration the impact of that use
on the distinctive character of the earlier trade mark.

the Court of First

As the comparison between the goods and the likelihood of
Instance's judgment violates
confusion,
several provisions of Community law with respect
to the
Appellant's argument that proof of use of the earlier trade
mark had only been given for ‘Champagne’ and not for all the
goods for which the earlier trade mark is registered. Further-
more, where the Court of First Instance compares ‘Champagne’
and ‘Cava’, in its assessment of the likelihood of confusion, the
Appellant is of the opinion that the judgment contains contra-
dictory reasoning because the Court of First Instance judged,
on the one hand, that consumers are generally particularly
interested in the origin of the wines and, on the other hand,
that ‘Champagne’ and ‘Cava’ are similar. As a consequence, the
Court of First
Instance wrongly assessed the likelihood of
confusion in the present case.

In its assessment of the likelihood of confusion, the Court of
First Instance wrongly failed to consider the impact of the
manner in which the prior trademark has been used; nor did it
correctly assess the respective weights of the evocative and
non-evocative parts of the Appellant's trade mark in its assess-
ment of the similarity between the conflicting trade marks. As
a consequence, the Court of First Instance wrongly assessed te
likelihood of confusion in the present case.

(1) OJ L 011, P. 1-36