Case C-301/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 26 June 2007 — PAGO International GmbH v Tirolmilch registrierte Genossenschaft mbH
Date: 2007-09-22
Institutions: Court of Justice
Subjects: EU trade mark, interpretation of the law, trade mark, trade-mark law

C 223/4

EN

Official Journal of the European Union

22.9.2007

V

(Announcements)

COURT PROCEEDINGS

COURT OF JUSTICE

Reference for a preliminary ruling from the Bundesgericht-
shof (Germany) lodged on 22 June 2007 — Bundesverband
der Verbraucherzentralen und Verbraucherverbände —
deutsche
Verbraucherzentrale Bundesverband

e.V.

v

internet versicherung AG

(Case C-298/07)

(2007/C 223/03)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

2. If the answer to Question 1 is negative:

(a) Is a service provider required under Article 5(1)(c) of the
directive to offer a second means of communication, in
addition to indicating his electronic mail address, prior
to entering into a contract with a user of the service?

(b) If the answer is positive: Does it suffice, for the purposes
of a second means of communication, that the service
provider installs an enquiry mask enabling the user to
consult the service provider via the Internet, the user's
enquiry then being answered by the service provider by
means of electronic mail?

(1) OJ L 178, p. 1.

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria) lodged on 26 June 2007 — PAGO
registrierte
v
International
Genossenschaft mbH

Tirolmilch

GmbH

Applicant:
und
Verbraucherverbände —Verbraucherzentrale Bundesverband e.V.

der Verbraucherzentralen

Bundesverband

Defendant: deutsche internet versicherung AG

Questions referred

the European Parliament and of

1. Is a service provider required under Article 5(1)(c) of Direc-
tive 2000/31/EC of
the
Council of 8 June 2000 on certain legal aspects of informa-
tion society services,
in
the Internal Market (1) to provide a telephone number before
entering into a contract with a user of the service, so that he
can be contacted rapidly and communicated with in a direct
and effective manner?

in particular electronic commerce,

(Case C-301/07)

(2007/C 223/04)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: PAGO International GmbH

Defendant: Tirolmilch registrierte Genossenschaft mbH

22.9.2007

EN

Official Journal of the European Union

C 223/5

Questions referred

1. Is a Community trade mark protected in the whole of the
Community as a ‘trade mark with a reputation’
for the
purposes of Article 9(1)(c) of Council Regulation (EC)
No 40/94 of 20 December 1993 on the Community trade
mark (1) (Regulation 40/94) if it has a ‘reputation’ only in
one Member State?

2. If the answer to the first question is in the negative:

is a
mark which has a ‘reputation’ only in one Member State
protected in that Member State under Article 9(1)(c) of Regu-
lation 40/94, so that a prohibition limited to that Member
State may be issued?

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

— Annulment of Commission Decision 2004/337/EC of
20 December 2001 relating to a proceeding pursuant to
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case COMP/E-1/36.212 — Carbonless paper) (1)
in so far as it affects the appellant;

In the alternative: a reduction of the fine imposed on the
appellant in Article 3 of that decision;

— In the alternative to the second indent above: referral of the
matter back to the Court of First Instance for determination
in accordance with the judgment of the Court of Justice;

— In any event, an order for the Commission to pay the costs
incurred by the appellant both before the Court of First
Instance and the Court of Justice.

Appeal brought on 12 July 2007 by Papierfabrik August
Koehler AG against the judgment of the Court of First
Instance (Fifth Chamber) of 26 April 2007 in Joined Cases
T-109/02 Bolloré v Commission, T-118/02 Arjo Wiggins
Appleton v Commission, T-122/02 Mitsubishi HiTec Paper
Bielefeld v Commission, T-125/02 Papierfabrik August
Koehler v Commission, T-126/02 M-real Zanders v Commis-
sion, T-128/02 Papeteries Mougeot v Commission, T-129/02
Torraspapel v Commission, T-132/02 Distribuidora Vizcaína
Papelera
de

T-136/02
Guipuzcoana de Zicuñaga v Commission

v Commission,

Papeles

and

(Case C-322/07 P)

(2007/C 223/05)

Language of the case: German

Parties

Appellant: Papierfabrik August Koehler AG (represented by: I.
Brinker, S. Hirsbrunner,
J. Schwarze, University
lawyers,
Professor)

Other party to the proceedings: Commission of
Communities

the European

Pleas in law and main arguments

The appellant raises the following pleas:
the Court of First
Instance's reasoning in relation to the setting of the amount of
the fine infringes both the principles of equal treatment and
proportionality. The appellant thus claims that substantive Com-
munity law has been infringed. The Court erroneously assumed
it to be insignificant that the appellant is a family business and,
in comparison with the other undertakings, does not have
direct access to capital markets.
Instead the Court wrongly
pointed out that an undertaking cannot rely to its advantage on
an infringement of law which was committed to the benefit of
other undertakings. However, the appellant did not rely on that
argument in any way. The Court did not appropriately assess
the structural differences between the appellant and the other
undertakings which are accused of committing an infringement.
The Court thereby infringed the principles of equal treatment
and proportionality.

Moreover, the Court wrongly assumed that the appellant was a
party to the infringement in the period prior to October 1993.
In that regard, the Court gave insufficient proof, assessed that
proof contradictorily and, moreover, falsified it. It also infringed
the presumption of
innocence and the appellant's rights of
defence. The appellant thus claims that there was a procedural
error. The Court's reasoning for its finding that the official meet-
ings of
the AEMCP association between January 1992 and
September 1993 served as a setting for fixing prices on the
European market is insufficient and contradictory. Furthermore,
the appellant alleges that the Court committed legal errors in
assuming that the appellant participated in unofficial meetings,
in which prices at national level were discussed.

Form of order sought

(1) OJ 2004 L 115, p. 1.

— Annulment of the judgment of the Court of First Instance
(Fifth Chamber) of 26 April 2007 (Case T-125/02) in so far
as it affects the appellant;