Case C-81/08 P: Appeal brought on 25 February 2008 by Miguel Cabrera Sánchez against the judgment delivered on 13 December 2007 in Case T-242/06 Miguel Cabrera Sánchez v OHIM and Industrias Cárnicas Valle, S.A.
Date: 2008-02-25
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, foodstuff, meat, trade-mark law

C 128/20

EN

Official Journal of the European Union

24.5.2008

Parties to the main proceedings

Appellant: Dachsberger & Söhne GmbH

Respondent: Zollamt Salzburg, Erstattungen

Appeal brought on 25 February 2008 by Miguel Cabrera
Sánchez against the judgment delivered on 13 December
2007 in Case T-242/06 Miguel Cabrera Sánchez v OHIM and
Industrias Cárnicas Valle, S.A.

Questions referred

1. Is the second sentence of

the second subparagraph of
Article 11(1) of Commission Regulation (EEC) No 3665/87
of 27 November 1987, as amended by Commission Regu-
lation (EC) No 2945/94 of 2 December 1994 (1), which
provides that, for the calculation of the requested refund in
the case of a differentiated refund, ‘the differentiated part of the
refund shall be calculated using the particulars of quantity, weight
and destination provided pursuant to Article 47’, to be inter-
preted as meaning that the expression ‘particulars of quantity,
weight and destination provided pursuant to Article 47’ refers to
the particulars in the specific application made pursuant to
Article 47(1), with the result that the differentiated part of
the refund is requested only at the time of presentation of
the application within the meaning of Article 47(1)?

2. If the reply to the first question is in the affirmative, the
question arises as to whether,
if the request for payment
pursuant to Article 47(1) of Commission Regulation (EEC)
No 3665/87 of 27 November 1987 is already to be
submitted ‘in the document used for export
to enable
products to qualify for a refund’ (here, the export declara-
tion), the abovementioned provision is to be interpreted as
meaning that the calculation of the refund requested in rela-
tion to the differentiated part is to be made using the parti-
culars in the export declaration, with the result that the
differentiated part of the refund is requested also with the
export declaration?

3. If the reply to the first question is in the negative, the ques-
tion arises as to whether the abovementioned provision is to
be interpreted as meaning that the calculation of the refund
requested in relation to the differentiated part is to be made
using the documents to be presented in accordance with
Article 47 of Commission Regulation (EEC) No 3665/87 of
27 November 1987, with the result that the differentiated
part of the refund is requested only at the time of presenta-
tion of the ‘documents relating to payment’ within the meaning
of Article
(EEC)
No 3665/87 of 27 November 1987?

of Commission Regulation

47(2)

4. If the reply to the third question is in the affirmative, the
question arises as to whether the abovementioned provision
is to be interpreted as meaning that, for the purpose of
requesting the differentiated part of the refund, the presenta-
such documents within the meaning of
tion even of
Article 47(2) of Commission Regulation (EEC) No 3665/87
of 27 November 1987 which are defective is sufficient, with
the consequence in law that
the sanction provision of
Article 11 of Commission Regulation (EEC) No 3665/87 of
27 November 1987 is applicable also in relation to the
differentiated part of the refund?

(1) OJ 1994 L 310, p. 57.

(Case C-81/08 P)

(2008/C 128/34)

Language of the case: Spanish

Parties

Appellant: Miguel Cabrera
A. Calderón Chavero and T. Villate Consonni, abogados)

(represented

Sánchez

by:

J.

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) and Indus-
trias Cárnicas Valle, S.A.

Form of order sought

— Set aside the judgment of

the Court of First

Instance
(Third Chamber) delivered on 13 December 2007 in case
T-242/06 seeking annulment of the decision in question
since the appellant claims that the marks EL CHARCUTERO
(appellant) and EL CHARCUTERO ARTESANO (respondent)
are clearly incompatible;

— Make an order for costs.

Pleas in law and main arguments

The appellant claims, contrary to the judgment under appeal,
that the Community trade mark ‘El chacutero Artesano’ falls
under the prohibition in Article 8(1)(b) of Regulation 40/94 (1)
since, upon opposition by the proprietor of an earlier trade
mark, in this case, the Spanish mark ‘El Charcutero’, the trade
mark applied for is not to be registered if, because of its identity
with or similarity to the earlier trade mark and the identity or
similarity of the goods or services covered by the trade marks,
there exists a likelihood of confusion on the part of the public
in the territory in which the earlier trade mark is protected, in
this case, Spain. The likelihood of confusion includes the likeli-
hood of association with the earlier trade mark.

(1) Council Regulation of 20 December 1993 on the Community trade

mark (OJ 1993 L 11, p. 1).