Case C-206/04 P: Judgment of the Court (First Chamber) of  23 March 2006  — Mülhens GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Zirh International Corp. (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Word mark ZIRH — Opposition by the proprietor of the Community trade mark SIR)
Date: 2006-06-03
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), intellectual property, trade-mark law

3.6.2006

EN

Official Journal of the European Union

C 131/13

Judgment of the Court (First Chamber) of 23 March 2006
— Mülhens GmbH & Co. KG v Office for Harmonisation
in the Internal Market (Trade Marks and Designs), Zirh
International Corp.

Judgment of the Court (Second Chamber) of 23 March
2006 — Commission of the European Communities v
Republic of Austria

(Case C-206/04 P) (1)

(Appeal — Community trade mark — Article 8(1)(b) of
Regulation (EC) No 40/94 — Likelihood of confusion —
Word mark ZIRH — Opposition by the proprietor of the
Community trade mark SIR)

(2006/C 131/22)

Language of the case: English

(Case C-209/04) (1)

(Failure of a Member State to fulfil obligations — Directive
79/409/EEC — Conservation of wild birds — Corncrake —
Special protection area in the Lauteracher Ried national
nature reserve — Exclusion of the Soren and Gleggen-
Köblern sites — Directive 92/43/EEC — Conservation of
natural habitats — Wild fauna and flora — Procedure for a
construction plan or project — Procedure for determining the
road line of a dual carriageway — Procedure for environ-
mental impact study — Procedural breaches relating to the
project for the construction of the federal S 18 dual carria-
geway in Austria — Temporal application of Directive
92/43)

Parties

Appellant: Mülhens GmbH & Co. KG (represented by: T.
Schulte-Beckhausen and C. Musiol, lawyers)

Parties

(2006/C 131/23)

Language of the case: German

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: S.
Laitinen and A. von Mühlendahl, Agents)

Applicant: Commission of the European Communities (repre-
sented by: M. van Beek and B. Schima, agents)

Intervener: Zirh International Corp., (represented by L. Kouker)

Defendant: Republic of Austria (represented by: E. Riedl,
Müller and K. Humer, Agents)

J.

Re:

Re:

Appeal against the judgment of the Court of First Instance
(Fourth Chamber) of 3 March 2004 in Case T-355/02 Mülhens
v OHIM, by which it dismissed an action for annulment of the
rejection of the opposition by the proprietor of an earlier mark
to the registration of a trade mark — Similarity of the marks
— Art. 8(1)(b) of Council Regulation (EC) No 40/94 of 20
December 1993 on the Community trade mark (OJ 1994 L 11,
p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders Mülhens GmbH & Co. KG to pay the costs.

(1) OJ C 179, 10.07.2004.

Failure of a Member State to fulfil obligations — Infringement
of Article 4(1) and (2) of Council Directive 79/409/EEC of 2
April 1979 on the conservation of wild birds (OJ 1979 L 103,
p. 1) and Article 6(4) in conjunction with Article 7 of Council
Directive 92/43/EEC of 21 May 1992 on the conservation of
natural habitats and of wild fauna and flora (OJ 1992 L 206, p.
7) — Drawing of the boundaries of the special protection area
‘Lauteracher Ried’ on the basis of inaccurate scientific criteria,
wrongly excluding the two sites ‘Soren’ and ‘Gleggen-Köblern’,
which are important for the protection of the corncrake (Crex
crex) and other migratory birds nesting in the meadows —
Authorisation of a road-construction project likely to affect
that area, without complying with the obligations under Article
6(4) of Directive 92/43/EEC.

Operative part of the judgment

1. Declares that, by failing to include in the special protection area at
the Lauteracher Ried national nature reserve
the Soren and
Gleggen-Köblern sites which, according to scientific criteria, are,
together with that special protection area, among the most suitable
territories in number and size for the purposes of Article 4(1) and
(2) of Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds, as amended by Commission Directive
97/49/EC of 29 July 1997, the Republic of Austria has failed to
fulfil its obligations under those provisions of that directive;