Case C-108/07 P: Appeal brought on 23 February 2007 by Ferrero Deutschland GmbH against the judgment delivered by the Court of First Instance (Third Chamber) on 15 December 2006 in Case T-310/04 Ferrero Deutschland GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Cornu SA Fontain
Date: 2007-06-09
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, confectionery product, trade-mark law

C 129/4

EN

Official Journal of the European Union

9.6.2007

interpretation by the Court that there is no need to consult the
official's previous immediate hierarchical superior. As regards
those two issues, the contested judgment suffers from numerous
defects in the reasoning of the Court, which also misinterpreted
the scope of several documents submitted to it by the appellant.

Appeal brought on 23 February 2007 by Ferrero
Deutschland GmbH against the judgment delivered by the
Court of First Instance (Third Chamber) on 15 December
2006 in Case T-310/04 Ferrero Deutschland GmbH v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM) and Cornu SA Fontain

(Case C-108/07 P)

(2007/C 129/05)

Language of the case: French

Parties

Appellant:
M. Schaeffer, Rechtsanwalt)

Ferrero Deutschland GmbH (represented

by:

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Cornu SA
Fontain

put forward in its judgment should have led to the conclusion
that those marks have an average degree or even high degree of
similarity. Fourth, the Court failed to take sufficient account of
the documents submitted by the appellant in order to highlight
the highly distinctive character of the mark ‘Ferrero’. Finally, in
its assessment of
the Court
committed an error of law by failing to take account of the
many factors mentioned in the seventh recital in the preamble
to Regulation (EC) No 40/94.

the likelihood of confusion,

(1) OJ 1994 L 11, p. 1.

Reference for a preliminary ruling from the Juzgado
Contencioso-Administrativo No 22 of Madrid (Spain) of
12 March 2007 — Asociación Ecologistas en Acción-CODA
v Ayuntamiento de Madrid

(Case C-142/07)

(2007/C 129/06)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo No 22 of Madrid

Form of order sought

Parties to the main proceedings

— set aside the judgment of the Court of First Instance (Third
Chamber) of 15 December 2006 in Case T-314/04 Ferrero
Deutschland v OHIM — Cornu SA Fontain;

Applicant: Spanish Government and the Autonomous Com-
munity of Madrid

— order OHIM and the intervener to pay the costs of the

Defendant: Ayuntamiento de Madrid

proceedings.

Pleas in law and main arguments

Questions referred

The appellant puts forward a single plea in law in support of its
appeal, alleging an infringement of Community law by the
Court of First Instance and, more specifically, that it incorrectly
interpreted Article 8(1)(b) of Council Regulation (EC) No 40/94
of 20 December 1993 on the Community trade mark (1). In
that connection, the applicant puts forward the following five
arguments.

First, the Court failed to take account of the fact that the salted
and sweet goods concerned are produced and marketed to a
relevant extent by the same undertakings, including the inter-
vener itself. Second, the Court committed an error of law by
holding that
the goods concerned are only slightly similar,
whereas, in this case, it should have found at least an average
degree of similarity. Third, the Court committed an error of law
by attributing only ‘a certain degree of similarity’ to the marks
‘Ferrero’ and ‘Ferro’, whereas the arguments that the Court itself

assessments

1) Are the procedural requirements relating to environmental
impact
from Council Directive
arising
85/377/EEC (1), as amended by Council Directive 97/11/EC,
of 3 March 1977 applicable to urban road projects, having
regard to their nature, size and effect on densely populated
areas or on landscapes of historical, cultural or archaeolo-
gical significance?

assessments

2) Are the procedural requirements relating to environmental
from Council Directive
arising
impact
85/377/EEC, as amended by Council Directive 97/11/EC, of
3 March 1997 (2)applicable to the projects which form the
subject-matter of
appeal procedure,
having regard to their nature, the nature of the road on
which they are to be carried out, their characteristics, size,
effect on the surrounding area, density of population, budget
and the possible splitting up of a larger project which
contemplates similar works on the same road?

administrative

this