Case C-398/07 P: Appeal brought on 28 August 2007 by Waterford Wedgwood plc against the judgment of the Court of First Instance (Second Chamber) delivered on 12 June 2007 in Case T-105/05: Assembled Investments (Proprietary) Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2007-11-24
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), beverage industry, trade-mark law

C 283/12

EN

Official Journal of the European Union

24.11.2007

Appeal brought on 28 August 2007 by Waterford
Wedgwood plc against the judgment of the Court of First
Instance (Second Chamber) delivered on 12 June 2007 in
Case T-105/05: Assembled Investments (Proprietary) Ltd v
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

Reference for a preliminary ruling from the Bundesgericht-
shof (Germany) lodged on 30 August 2007 — Christopher
Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor
Flugdienst GmbH

(Case C-398/07 P)

(2007/C 283/20)

(Case C-402/07)

(2007/C 283/21)

Language of the case: English

Language of the case: German

Parties

Appellant: Waterford Wedgwood plc
Pagenberg, Rechtsanwalt)

(represented by:

J.

Referring court

Bundesgerichtshof

to

parties

Other
Investments
(Proprietary) Ltd, Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

proceedings: Assembled

the

Form of order sought

The appellant claims that the Court should:

Parties to the main proceedings

Applicants: Christopher Sturgeon, Gabriel Sturgeon, Alana
Sturgeon

— annul the Judgment of the Court of First Instance of 12 June

2007 in Case T-105/05

Defendant: Condor Flugdienst GmbH

— refer the case back to the Court of First Instance

— order OHIM and Assembled Investments to bear the costs of

the proceedings before the Court of Justice.

Questions referred

Pleas in law and main arguments

The Appellant claims that the Court of First Instance violated
Article 8(1)(b) of the Community Trade Mark Regulation (1) in
that it applied erroneous legal criteria in determining that the
conflicting goods are not similar.

The Appellant further claims that the Court of First Instance
violated Article 8(1)(b) of the Community Trade Mark Regu-
lation by holding, in paragraph 34 of its judgment, contrary to
the Board of Appeal, that consumers would not consider the
respective goods to be similar, without any evidentiary basis for
this finding, which is thus based on a distortion of the facts.

1. Is it decisive for the interpretation of the term ‘cancellation’
[for the interpretation of Articles 2(l) and Article 5(1)(c) of
Regulation (EC) No 261/2004 of the European Parliament
and of
the Council of 11 February 2004 establishing
common rules on compensation and assistance to passengers
in the event of denied boarding and of cancellation or long
delay
(EEC)
No 295/91 (1)] whether the original flight planning is aban-
doned, with the result that a delay, regardless of how long,
does not constitute a cancellation if the air carrier does not
actually abandon the planning for the original flight?

Regulation

repealing

flights,

and

of

2. If Question 1 is answered in the negative: in what circum-
stances is a delay of the planned flight no longer to be
regarded as a delay but as a cancellation? Is the answer to
this question dependent on the length of the delay?

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

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

(1) OJ 2004 L 46, p. 1.