Case C-88/06: Action brought on  13 February 2006  — Commission of the European Communities v Ireland
Date: 2006-05-06
Institutions: Court of Justice
Subjects: European Commission, Ireland, accident prevention, action for failure to fulfil an obligation, national implementing measure, occupational health, occupational safety, safety standard

C 108/4

EN

Official Journal of the European Union

6.5.2006

Action brought on 13 February 2006 — Commission of
the European Communities v Ireland

Other parties to the proceedings: 1. Biofarma SA; 2. Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs)

(Case C-88/06)

(2006/C 108/05)

Language of the case: English

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Enegren and I. Kaufmann-Bühler, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/45/EC of the European Parliament and of the
Council of 27 June 2001 amending Council Directive
89/655/EEC concerning the minimum safety and health
requirements for the use of work equipment by workers at
work (second individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC) (1), or in any event
by failing to communicate them to the Commission, Ireland
has failed to fulfil its obligations under the Directive;

Form of order sought

The appellant claims that the Court should:

— order the Contested Judgment be set aside;

— order the decision of the Third Board of Appeal of OHIM

of 5 February 2003 be restored;

— order OHIM be directed to register the mark applied for in

the name of the appellant;

— order the opponent pay the costs of this appeal and of the

application to the CFI.

— order Ireland to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 19 July 2004.

The appellant submits that the judgment of the Court of First
Instance (CFI) should be set aside on the following grounds:

(1) OJ L 195, 19/07/2001, p. 46

In the Judgment, the CFI held that there was a likelihood of
confusion on the part of the public between the two marks in
issue. The appellant contends that, in reaching that conclusion,
the CFI erred in law and/or acted in breach of procedure. The
errors relied upon are summarised below.

Appeal brought on 15 February 2006 by Bausch & Lomb
Inc. against the judgment of the Court of First Instance
delivered on 17 November 2005 in Case T-154/03:
Biofarma SA v Office for Harmonisation in the Internal
Market (Trade Marks and Designs)

The CFI erred in failing to consider either properly or at all
whether the goods for which the competing marks are or are
sought to be registered are similar goods. In the premises the
CFI erred in law.

(Case C-95/06 P)

(2006/C 108/06)

Language of the case: English

Parties

Appellant: Bausch & Lomb Inc. (represented by: M. Silverleaf
QC, R. Black, B. Gerber and E. Kohner, Solicitors)

The CFI ought to have considered whether the goods for which
registration is sought are similar to those upon which use of
the conflicting mark has been established. Had the CFI done so,
it should have concluded that they are not and accordingly that
there was no basis for the application of Article 8(1)(b). Alter-
natively,
it should have concluded that there is at most a
passing similarity in kind and that such slight similarity, when
weighed in the overall balance in determining whether there is
a likelihood of confusion, requires a very high degree of simi-
larity between the conflicting marks and reasons (which were
not given) why the relevant public might expect them to come
from commercially related sources.