Case C-488/06 P: Appeal brought on 27 November 2006 by L & D S.A. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 7 September 2006 in Case T-168/04 L & D S.A. v OHIM
Date: 2007-01-27
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), appeal, cosmetic product, trade-mark law

C 20/12

EN

Official Journal of the European Union

27.1.2007

Reference for a preliminary ruling from the Hof van
beroep te Antwerpen (Belgium) lodged on 27 November
2006 — BVBA Van Landeghem v Belgian State

Appeal brought on 27 November 2006 by L & D S.A.
against the judgment of the Court of First Instance (Fourth
Chamber) delivered on 7 September 2006 in Case T-168/04
L & D S.A. v OHIM

(Case C-486/06)

(2007/C 20/17)

Language of the case: Dutch

(Case C-488/06 P)

(2007/C 20/18)

Language of the case: Spanish

Referring court

Hof van beroep te Antwerpen

Parties

Parties to the main proceedings

Applicant: BVBA Van Landeghem

Defendant: Belgian State

Appellant: L & D S.A.
abogado)

(represented by: S. Miralles Miravet,

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) and Julios Sämann
Ltd

Question referred

Form of order sought

‘Should pick-ups — that is to say, motor vehicles consisting, on
the one hand, of an enclosed cabin for use as a passenger
compartment, there being behind the driver's seat folding or
removable seats with three-point safety belts, and, on the other
hand, of a load space which is separated from the cabin, is not
higher than 50 centimetres, can be opened only at the rear and
has no facilities for attaching a load — which were equipped
with a highly luxurious, full-option interior (including electri-
cally adjustable seats, leather seats, electrically operated mirrors
and windows, a stereo with a CD player, etc.), an ABS braking
system, an automatic, 4 to 8-litre, very high fuel-consumption
engine, four-wheel drive and luxurious (sports) rims, be classi-
fied, if put into circulation and released for home use in the
period between 10 April 1995 and 4 December 1997, under
heading 87.03 of the then applicable combined nomenclature
introduced by Council Regulation (EEC) No
(originally
2658/87 (1) of 23 July 1987 on the tariff and statistical nomen-
clature), as motor cars and other motor vehicles, principally
designed for the transport of persons (other than those of
heading No 87.02),
including motor vehicles of the “station
wagon” or “break” type and racing cars, or under heading 87.04
of the then applicable combined nomenclature as motor vehi-
cles for the transport of goods, or under a heading other than
headings 87.03 or 87.04 of
the then applicable combined
nomenclature?’

(1) OJ L 256, p. 1.

— set aside the judgment of the Court of First Instance in its

entirety

— annul paragraphs 1 and 3 of the decision of the Second
Board of Appeal of OHIM of 15 March 2004, in so far as it
(1) partially annuls the decision of the Opposition Division
and refuses registration of the mark applied for in respect of
goods in Classes 3 and 5, and, (2) orders each one of the
parties to bear the costs that they incurred in the opposition
proceedings and the appeal;

— order OHIM to pay all the costs.

Pleas in law and main arguments

Infringement of Article 8(1)(b) of Regulation No 40/94 (1).

The Court of First Instance infringed Article 8(1)(b) of Regu-
lation No 40/94 by concluding: (i) that the earlier Community
mark No 91.991 had acquired a distinctive character; (ii) that
the figurative mark with the verbal element ‘Aire Limpio’ No
252.288 and the earlier Community figurative mark No 91.991
were similar; and, (iii) that there was a likelihood of confusion.

Infringement of Article 73 of Regulation No 40/94

27.1.2007

EN

Official Journal of the European Union

C 20/13

The Opposition Division of OHIM (decision of 25 February
2003) and the Board of Appeal (decision of 15 March 2004)
confined their examination to the mark whose registration is
sought (‘Aire Limpio’ No 252.288) and the earlier Community
mark No 91.991. However, the Court of First Instance relied on
documents related to other marks, particularly in relation to
international mark No 328.915 ‘ARBRE MAGIQUE’. As a conse-
quence, the grounds of the judgment under appeal refer to a
mark that even the applicant excluded from the comparative
analysis in order to determine the existence of a likelihood of
confusion. By so doing, the applicant was unable to present its
case properly in respect of
the arguments and information
relating to other marks other than Community trade mark No
91.991, on which is based the error in the judgment under
appeal of the Court of First Instance.

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

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

Reference for a preliminary ruling from the Consiglio di
Stato (Italy) lodged on 28 November 2006 — Consorzio
Elisoccorso San Raffaele v Elilombarda s.r.l.

(Case C-492/06)

(2007/C 20/19)

Language of the case: Italian

Referring court

Consiglio di Stato

relating to the application of review procedures to the award of
public supply and public works contracts, as amended by
Council Directive 92/50/EEC (2) of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts, to be interpreted as precluding the possibility under
national law for an individual member of that consortium to
bring an action against the decision awarding the contract?

(1) OJ 1989 L 395, p. 33.
(2) OJ 1992 L 209, p. 1.

Appeal brought on 30 November 2006 by Commission of
the European Communities against the judgment of the
Court of First Instance (Second Chamber) delivered on 6
September 2006 in Case T-304/04 Commission of the Euro-
pean Communities v Italian Republic, Wam SpA

(Case C-494/06 P)

(2007/C 20/20)

Language of the case: Italian

Parties

Appellant: Commission of the European Communities (repre-
sented by: V. Di Bucci and E. Righini, Agents)

Other parties to the proceedings: Italian Republic, Wam SpA

Parties to the main proceedings

Forms of order sought

Applicant: Consorzio Elisoccorso San Raffaele

Defendant: Elilombarda s.r.l.

Question referred

Where a consortium without legal personality has participated
as such in a procedure for the award of a public contract and
has not been awarded that contract,
is Article 1 of Council
Directive 89/665/EEC (1) of 21 December 1989 on the coordi-
nation of the laws, regulations and administrative provisions

— Set aside the judgment of the Court of First Instance of the
European Communities of 6 September 2006 in Joined
Cases T-304/04 and T-316/04 Italian Republic and Wam SpA
v Commission of the European Communities and, in so doing,

— give a final ruling on the dispute and dismiss the action as

unfounded;

— in the alternative, refer the case back to the Court of First

Instance for a new ruling;

— order the Italian Republic and Wam SpA to pay the costs of
the proceedings, together with the costs of the proceedings
at first instance.