Case C-225/06 P: Appeal brought on  16 May 2006  by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on  15 March 2006  in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh
Date: 2006-07-29
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, trade-mark law

C 178/22

EN

Official Journal of the European Union

29.7.2006

Question(s) referred

Question referred

Are Articles 43 and 49 of the EC Treaty in conjunction with
Article 86 thereof, as applied within the framework of the
liberalisation of the postal services established by Directives
1997/67/EC (1) and 2002/39/EC (2) and within the framework
of the rules governing public procurement introduced by the
ad hoc Directives, to be interpreted as precluding an agreement
whose subject-matter includes the provision of postal services,
both reserved and unreserved and,
liberalised,
concluded between a department of the State Administration
and a state company whose capital is wholly state-owned and
which is furthermore, the universal postal service provider?

therefore,

(1) Directive 97/67/EC of the European Parliament and the Council of
15 December 1997 on common rules for the development of the
internal market of Community postal services and the improvement
of quality of service. (OJ L 1998 15, p. 14).

(2) Directive 2002/39/EC of the European Parliament and the Council
of 10 June 2002 amending Directive 97/67/EC with regard to the
further opening to competition of Community postal services. (OJ L
2002 176, p. 21).

Do Articles 10 EC, 12 EC, 23 EC, 25 EC, 49 EC or 90 EC
preclude a national tax provision which makes the deposit of
waste at a waste disposal site subject to a tax (Altlastenbeitrag;
disused hazardous site levy), but provides for exemption from
that tax for the deposit of waste which demonstrably derives
from the safeguarding or rehabilitation of contaminated sites
(potentially hazardous sites or disused hazardous sites) if the
sites (potentially hazardous sites or disused hazardous sites) are
entered in official registers provided for by law (Verdachtsflä-
chenkataster; register of potentially hazardous sites, or Altlastena-
tlas; disused hazardous sites register), and only sites in Austria
may be entered in those registers, with the result that the tax
exemption is also possible only in respect of the deposit of
waste which originates from potentially hazardous sites or
disused hazardous sites located in Austria?

Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki
Artopoiia AVEE against the judgement of the Court of
First Instance (Third Chamber) delivered on 15 March
2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia
AVEE v Office for Harmonisation in the Internal Market
(Trade Marks and Designs)(OHIM), Ferrero OHG mbh

Reference for a preliminary ruling from the Verwaltungs-
gerichtshof (Austria) lodged on 15 May 2006 — Stadtge-
meinde Frohnleiten und Gemeindebetriebe Frohnleiten
GmbH v Bundesminister für Land-und Forstwirtschaft,
Umwelt und Wasserwirtschaft

(Case C-221/06)

(2006/C 178/35)

Language of the case: German

Parties

(Case C-225/06 P)

(2006/C 178/36)

Language of the case: English

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant: Athinaïki Oikogeniaki Artopoiia AVEE (represented
by: A. Tsavdaridis, Attorney at Law)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Ferrero OHG mbh

Form of order sought

The applicant claim that the Court should:

— Annul the contested decision of the Court of First Instance

Applicants: Stadtgemeinde Frohnleiten und Gemeindebetriebe
Frohnleiten GmbH

— Reject definitely and in its entirety the opposition to regis-

tration of the mark applied

Defendant: Bundesminister
Umwelt und Wasserwirtschaft

für Land- und Forstwirtschaft,

— Order the Office and intervener to pay the costs, including
those incurred in opposition proceedings and before the
Board of Appeal and the Court of First Instance.

29.7.2006

EN

Official Journal of the European Union

C 178/23

Pleas in law and main arguments

The appellant maintains that the Court of First Instance erred
in interpreting article 8 (1) (b) of Regulation (EC) No 40/94 (1)
because:

The Court of First Instance ignored the fact that the apprecia-
tion of
the likelihood of confusion depends on numerous
elements, mentioned in the seventh recital of the preamble to
Council Regulation (EC) No 41/94 (2) and, in particular, on the
recognition of the trade mark on the market and not only on
the degree of similarity between the trade mark and the sign
and between the goods and services identified.

The earlier trade mark ‘Ferrero’ is not being used to identify
products sold on the German market. As a result there is no
likelihood of confusion for the average German consumer who
does not associate the trademark ‘Ferrero’ with its products,
whatever the degree of similarity between the two signs.

The Court of First Instance also ignored the fact that, according
to the settled case-law of the Court of Justice, the likelihood of
confusion on the part of the public must be appreciated glob-
ally, taking into account all factors relevant to the circum-
stances of the case. Furthermore, a global assessment of the
likelihood of confusion implies some interdependence between
the relevant factors. The appellant submits that, had the Court
of First Instance taken into account the interdependence of the
relevant factors, it would have concluded that there is little risk
of confusion.

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) and Marina Entre-
prise Project — Società Unipersonale di Alberto Fiorenzi

Form of order sought

(1) Set aside the judgement of

Instance
(Fourth Chamber) of 23 February 2003 in Case T-194/03
which dismisses the applicant's action and orders it to pay
the costs.

the Court of First

(2) Uphold the action brought by the applicant before the

Court of First Instance:

(a) by annulling the decision of

the Fourth Board of
Appeal of the OHIM of 17 March 2003 in Case R
1015/2001-4, on the ground that, by dismissing the
it allowed the Community trade
applicant's action,
mark No 940007 BAINBRIDGE
for
products in Classes 18 to 25;

(figurative)

(b) by ordering the OHIM and the intervener to pay the
costs of the proceedings at first instance and of the
present appeal.

(1) OJ L 11, p. 1-36.
(2) OJ L 209, p. 18-19.

Pleas in law and main arguments

Appeal brought on 24 May 2006 by Il Ponte Finanziaria
SpA against the judgement of the Court of First Instance
(Fourth Chamber) delivered on 23 February 2006 in Case
T-194/03 Il Ponte Finanziaria SpA v OHIM and Marine
Entreprise Project — Società Unipersonale di Alberto Fior-
enzi Srl

(Case C-234/06 P)

(2006/C 178/37)

Language of the case: Italian

The applicant submits that
vitiated due to:

the judgement under appeal

is

(1) Misapplication of Article 8(1)(b) of Regulation (EC) No
40/94 in that there is a risk of confusion between the
conflicting trade marks:

— the Court erred in considering that

there was no
minimum degree of similarity between the intervener's
trade mark BAINBRIDGE and the applicant's family of
trade marks including the term ‘THE BRIDGE’, when it
itself recognised that the opposing trade mark BAIN-
BRIDGE has a ‘significant’ phonetic similarity to some
of the applicant's trade marks; a similarity which is not
between
conceptual
outweighed
between the opposing trade marks, given that
the
‘premiss’ on which the Court based itself, according to
which the average Italian consumer has
sufficient
knowledge of the English language to enable them to
understand the meaning of the word ‘BRIDGE’ is clearly
wrong;

difference

by

a

Parties

Appellant: Il Ponte Finanziaria SpA (represented by: P. Ronca-
glia, A. Torrigiani Malaspina, M. Boletto, lawyers)

— if therefore the opposing trade marks have at least a
minimum degree of similarity, the identity of the goods
and the highly distinctive character of the applicant's
trade marks should have led to a finding of a risk of
confusion.