Case C-493/06 P: Appeal brought on 30 November 2006 by Tesco Stores Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 13 September 2006 in Case T-191/04: MIP Group Intellectual Property GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2007-03-10
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, marketing, trade-mark law

10.3.2007

EN

Official Journal of the European Union

C 56/13

Operative part of the order

The Combined Nomenclature in Annex I to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomencla-
ture and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1789/2003 of 11 September 2003, must be
interpreted as meaning that capsules containing primarily melatonin
such as those in issue in the main proceedings fall under tariff heading
3004.

(1) OJ C 86, 8.4.2006.

Appeal brought on 30 November 2006 by Tesco Stores Ltd
against the judgment of the Court of First Instance (Third
Chamber) delivered on 13 September 2006 in Case T-191/
04: MIP Group Intellectual Property GmbH & Co. KG v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

(Case C-493/06 P)

(2007/C 56/22)

Language of the case: English

Parties

Appellant: Tesco Stores Ltd (represented by: E. Kelly, Solicitor, S.
Malynicz, Barrister)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market, MIP Metro Group Intellectual Property GmbH
& Co. KG

Form of order sought

The applicant claims that the Court should:

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

13 September 2006 in Case T-191/04.

— order the Respondent to pay Tesco's costs of this appeal and

of the appeal before the Court of First Instance.

Pleas in law and main arguments

The appellant maintains that the contested judgment should be
set aside on the grounds that the Court of First Instance has
committed a breach of procedure which adversely affects the
appellant and has infringed Community law. In particular, the
applicant submits that:

1. Article 8 and 42 of

the Community Trade Mark Regu-
lation (1) do not require an opponent to prove any of the
conditions of an opposition beyond the opposition period. A

correct and legally certain interpretation of the provisions
requires an opponent
to demonstrate conditions such as
proprietorship and subsistence of the earlier right once and
once only, that is to say, at the time of the opposition;

2. Rules 15, 16 and 20 of Commission Regulation (EC) No.
2868/95 of 13 December 1995 implementing Regulation
No. 40/94 on the Community Trade Mark (2) did not require
the opponent to substantiate the earlier mark in any way
beyond that already provided and,
in particular, did not
impose any obligation upon it to demonstrate renewal of the
earlier mark beyond the opposition period;

3. There was a legitimate expectation on the part of Tesco that
it was not required to provide further substantiation of its
earlier right beyond that already provided;

4. To impose upon Tesco the obligation to demonstrate
renewal, as of 28 January 2000, 24 February 2000, 13 June
2000 or even 23 October 2000 would be to require Tesco
retrospectively to prove something that, as of those dates, it
was either not able and/or not required to do at the time
under national law;

5. There were breaches of procedure before the Court of First
Instance adversely affecting Tesco in that: (a) OHIM sought
to rely on a version of its Opposition Guidelines that was
not in use at the material time; and (b) OHIM advanced argu-
ments that went beyond the terms of the dispute as delimited
by the parties.

(1) OJ L 11, p. 1.
(2) OJ L 303, p. 1.

Reference for a preliminary ruling from the Juzgado de lo
Social Único de Algeciras (Spain) lodged on 7 December
2006 — Maira María Robledillo Núñez v Fondo de Garantía
Salarial (‘FOGASA’)

(Case C-498/06)

(2007/C 56/23)

Language of the case: Spanish

Referring court

Juzgado de lo Social Único de Algeciras

Parties to the main proceedings

Applicant: Maira María Robledillo Núñez

Defendant: Fondo de Garantía Salarial (‘FOGASA’)