Case C-103/06: Reference for a preliminary ruling from Tribunal des Affaires de Sécurité Sociale de Paris made on  22 February 2006  — Philippe Derouin v Union pour le recouvrement des cotisations de sécurité sociale et d'allocations familiales de Paris — Région Parisienne
Date: 2006-05-06
Institutions: Court of Justice
Subjects: France, United Kingdom, interpretation of the law, social security, social-security contribution, tax convention, worker (EU)

6.5.2006

EN

Official Journal of the European Union

C 108/5

The CFI erred in law in applying Article 8(1)(b) in its considera-
tion of the relative similarity of the competing marks. It made
its assessment not on the basis of a global assessment of the
overall impression that the marks make on the eye or ear of
the average consumer but on the basis of a minute dissection
of the linguistic and verbal characteristics of the words forming
the respective marks.

Reference for a preliminary ruling from Tribunal des
Affaires de Sécurité Sociale de Paris made on 22 February
2006 — Philippe Derouin v Union pour le recouvrement
des cotisations de sécurité sociale et d'allocations famil-
iales de Paris — Région Parisienne

the CFI should have considered the
In assessing similarity,
marks as a whole and by reference to the visual and, in particu-
lar, aural impact of the whole of the conflicting marks upon
the eye and ear of the average consumer. Further the CFI failed
to take into account the fact that the products in issue are ones
in relation to which it is common ground that one can expect
the relevant public to take significant care both in selection and
use. Had the CFI applied the correct approach, it would have
concluded that the two marks both sound and look different.

The CFI failed to identify the relevant public and accordingly
erred in law. The CFI erred in law in its application of Article
8(1)(b) in determining that patients form part of the relevant
public. The CFI ought to have concluded in accordance with
the law that the relevant public consists of medical profes-
sionals.

In carrying out its assessment of similarity, the CFI acted in a
mechanistic manner. It failed to weigh up the similarities it had
found and consider whether they led to a likelihood of confu-
sion. Instead, it assumed this was the case. Having done so, the
CFI proceeded to dismiss the differences between the respective
marks and goods as not removing that likelihood. This it did
without explaining its reasons. Accordingly, the CFI erred in
law in its application of Article 8(1)(b) as interpreted by the
ECJ and/or acted in breach of procedure, in particular Article
81 of the Rules of Procedure, in failing to state the grounds for
its decision.

The CFI erred in law by not considering the level of attention
of the average consumer of the goods concerned, and whether
this may reduce the likelihood of confusion. It should have
taken account of the particularly high level of attention exhib-
ited by the average consumer when he prepares and makes his
choice between the relevant goods and the effect this may have
on the likelihood of confusion. Accordingly, the CFI erred in its
application of Article 8(1)(b), as interpreted by the ECJ.

(Case C-103/06)

(2006/C 108/07)

Language of the case: French

Referring court

Tribunal des Affaires de Sécurité Sociale de Paris

Date lodged: 22 February 2006

Parties to the main proceedings

Applicant: Philippe Derouin.

Defendant: Union pour le recouvrement des cotisations de
sécurité sociale et d'allocations familiales de Paris — Région
Parisienne (Urssaf).

Questions referred

Is Regulation 1408/71 of 14 June 1971 (1) to be interpreted as
precluding a convention, such as the United Kingdom/France
Taxation Convention of 22 May 1968, from providing that
income received in the United Kingdom by workers resident in
France and covered by social insurance in that State is excluded
from the basis on which the ‘contribution sociale généralisée’
(CSG — general social contribution) and the ‘contribution pour
le remboursement de la dette sociale’
(CRDS — social debt
repayment contribution) levied in France are assessed?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
the application of social security schemes to employed persons and
their families moving within the Community (OJ 1971 L 149, p. 2)