Case C-405/06 P: Appeal brought on 2 October 2006 by Miguel Torres S.A against the judgment of the Court of First Instance (Second Chamber) delivered on 11 July 2006 in Case T-247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A.
Date: 2006-12-16
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), interpretation of the law, rights of the defence, trade-mark law

C 310/6

EN

Official Journal of the European Union

16.12.2006

Appeal brought on 2 October 2006 by Miguel Torres S.A
against
Instance
(Second Chamber) delivered on 11 July 2006 in Case T-
247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A.

the Court of First

the judgment of

(Case C-405/06 P)

(2006/C 310/10)

Language of the case: Spanish

between the two conflicting marks. The appellant submits
that the Court of First Instance does not take as its starting
point the test relating to the perception of the average Euro-
pean consumer, but with the test relating to the perception
of the Spanish, Portuguese and Italian consumer.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Parties

Appellant: Miguel Torres S.A (represented by: E. Armijo
Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez
Gόmez, abogados)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) and Bodegas Muga
S.A.

Reference for a preliminary ruling from the Bundesfi-
nanzhof (Germany) lodged on 5 October 2006 — Lande-
sanstalt für Landwirtschaft, Abteilung Förderwesen und
Fachrecht v Franz Götz

(Case C-408/06)

(2006/C 310/11)

Language of the case: German

Form of order sought

— annul the judgment under appeal in so far as it dismisses
the action for annulment brought against the contested
decision;

Referring court

— annul the contested decision in so far as it was not annulled

by the judgment under appeal; and

Bundesfinanzhof (Germany)

— order OHIM to pay the costs.

Pleas in law and main arguments

the fact

1. Infringement of the rights of defence of Miguel Torres S.A.,
the judgment under appeal
that
by reason of
dismissed the first of the pleas in law in the action for
annulment before the Court of First Instance based on the
infringement of the appellant's rights of defence. The refusal
by the First Board of Appeal of OHIM to accept the docu-
ments produced by Miguel Torres S.A. and its statement of
grounds for the appeal, of 25 January 2002, which sought
to prove that the mark TORRES is well known throughout
the EU is, in the appellant's view, a substantive irregularity
on the basis of which the Court of First Instance should
have annulled the contested decision. By failing to do so the
Court of First Instance also infringed the appellant's rights
of defence, undermining the principle of functional conti-
nuity and Article 8(1)(b) of the Regulation on the Com-
munity trade mark. (1)

2. Infringement of Article 8(1)(b) of the Regulation on the
Community trade mark on account of incorrect interpreta-
tion of that provision by the Court of First Instance. The
application by the Court of First Instance of that principle
contains an error of law because of incorrect application of
the criterion of the perception of the relevant public for the
purpose of the assessment of the likelihood of confusion

Parties to the main proceedings

Applicant: Landesanstalt für Landwirtschaft, Abteilung Förder-
wesen und Fachrecht

Defendant: Franz Götz

Questions referred

1. Is a ‘Milchquoten-Verkaufsstelle’ (milk-quota sales point) set up
by a German Land which transfers delivery reference quanti-
ties to milk producers for consideration

a) an agricultural intervention agency within the meaning
of the third subparagraph of Article 4(5) of and Annex D
(7) to the Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member
States relating to turnover taxes (1) (‘the Sixth Directive’)
which carries out transactions in respect of agricultural
products pursuant to regulations on the common organi-
sation of the market in these products, or

b) a Verkaufsstelle (staff shop) within the meaning of the
third subparagraph of Article 4(5) of and Annex D (12)
of the Sixth Directive?