Case C-238/08: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 3 June 2008 — Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger, a franchisee of Unicis
Date: 2008-06-03
Institutions: Court of Justice
Subjects: EU trade mark, advertising, industrial counterfeiting, interpretation of the law, provision of services, registered trade mark, search engine

15.8.2008

EN

Official Journal of the European Union

C 209/27

Reference for a preliminary ruling from the Cour de
Cassation (France) lodged on 3 June 2008 — Google France
v Viaticum, Luteciel

incur liability before it has been informed by the trade mark
proprietor of the unlawful use of the sign by the advertiser?

(Case C-237/08)

(2008/C 209/40)

Language of the case: French

(1) OJ 1989 L 40, p. 1.
(2) OJ 1994 L 11, p. 1.
(3) Directive 2000/31/EC of

the
Council of 8 June 2000 on certain legal aspects of information
in the Internal
in particular electronic commerce,
society services,
Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

the European Parliament and of

Referring court

Cour de Cassation (Commercial, Financial and Economic Divi-
sion)

Reference for a preliminary ruling from the Cour de
Cassation (France) lodged on 3 June 2008 — Google France
v CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger, a
franchisee of ‘Unicis’

(Case C-238/08)

(2008/C 209/41)

Language of the case: French

Parties to the main proceedings

Appellant: Google France

Referring court

Respondent: Viaticum, Luteciel

Cour de Cassation (Commercial, Financial and Economic Divi-
sion)

Questions referred

1. Must Article 5(1)(a) and (b) of First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws
of the Member States relating to trade marks (1) be inter-
preted as meaning that a provider of a paid referencing
service who makes available to advertisers keywords reprodu-
cing or imitating registered trade marks and arranges by the
referencing agreement to create and favourably display, on
the basis of those keywords, advertising links to sites offering
goods identical or similar to those covered by the trade mark
registration is using those trade marks in a manner which
their proprietor is entitled to prevent?

2. In the event that such use does not constitute a use which
may be prevented by the trade mark proprietor under the
directive or
[Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark] (2), may
the provider of the paid referencing service be regarded as
providing an information society service consisting of the
storage of
the
service, within the meaning of Article 14 of Directive
2000/31 of 8 June 2000 (3), so that that provider cannot

information provided by the recipient of

Parties to the main proceedings

Appellant: Google France

Respondents: CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger,
a franchisee of ‘Unicis’

Questions referred

1. Does the reservation by an economic operator, by means of
an agreement on paid Internet referencing, of a keyword trig-
gering, in the case of a request using that word, the display
of a link proposing connection to a site operated by that
operator in order to offer for sale goods or services, and
which reproduces or imitates a trade mark registered by a
third party in order to designate identical or similar goods,
without the authorisation of the proprietor of that trade
mark, constitute in itself an infringement of the exclusive
right guaranteed to the latter by Article 5 of First Council
Directive 89/104/EEC of 21 December 1988 (1)?

C 209/28

EN

Official Journal of the European Union

15.8.2008

2. Must Article 5(1)(a) and (b) of First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws
of the Member States relating to trade marks be interpreted
as meaning that a provider of a paid referencing service who
makes available to advertisers keywords reproducing or
imitating registered trade marks and arranges by the referen-
cing agreement to create and favourably display, on the basis
of those keywords, advertising links to sites offering goods
identical or similar to those covered by the trade mark regis-
tration is using those trade marks in a manner which their
proprietor is entitled to prevent?

3. In the event that such use does not constitute a use which
may be prevented by the trade mark proprietor under the
directive or
[Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark] (2), may
the provider of the paid referencing service be regarded as
providing an information society service consisting of the
storage of
the
service, within the meaning of Article 14 of Directive
2000/31 of 8 June 2000 (3), so that that provider cannot
incur liability before it has been informed by the trade mark
proprietor of the unlawful use of the sign by the advertiser?

information provided by the recipient of

(1) First Council Directive 89/104/EEC of 21 December 1988 to approx-
imate the laws of the Member States relating to trade marks (OJ 1989
L 40, p. 1).

(2) OJ 1994 L 11, p. 1.
(3) Directive 2000/31/EC of

the
Council of 8 June 2000 on certain legal aspects of information
society services,
in the Internal
in particular electronic commerce,
Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

the European Parliament and of

Form of order sought

— Declare that, with regard to the refund of VAT to a taxable
person established in another Member State or in a non-
member country, even where that person has a fixed estab-
lishment, the Italian Republic has failed to fulfil its obliga-
tions under Article 1 of
Eighth Council Directive
79/1072/EEC (1) of 6 December 1979 on the harmonization
of the laws of the Member States relating to turnover taxes
— Arrangements for the refund of value added tax to
taxable persons not established in the territory of
the
country, and Article 1 of Thirteenth Council Directive
86/560/EEC (2) of 17 November 1986 on the harmoniza-
tion of the laws of the Member States relating to turnover
taxes — Arrangements for the refund of value added tax to
taxable persons not established in Community territory, in
so far as it obliges a taxable person whose registered office is
in a Member State or in a non-member country but who
has
fixed establishment which, during the period
concerned, supplied goods or services in Italy, to obtain a
refund of input VAT by means of the mechanisms provided
for in those directives, rather than by means of deduction,
where goods or services are purchased not through the fixed
establishment in Italy but directly from the place in which
that person is principally established;

a

— order the Italian Republic to pay the costs.

Action brought on 4 June 2008 — Commission of the
European Communities v Italian Republic

Pleas in law and main arguments

(Case C-244/08)

(2008/C 209/42)

Language of the case: Italian

By the present action, the Commission requests the Court of
Justice to declare that it is incompatible with Community law
for an Italian measure to oblige a person who is subject to VAT
whose registered office is in a Member State or in a non-
member country but who also has a fixed establishment in Italy
which, during the period concerned, has supplied goods or
services in Italy, to obtain a refund of input VAT by means of
the mechanisms provided for in Directive 79/1072/EEC (the
Eighth VAT Directive) and Directive 86/560/EEC (the Thirteenth
VAT Directive) rather than by means of the normal deduction
mechanism provided for
in Directive
77/388/EEC (3)
(the Sixth VAT Directive), where goods or
services are purchased not through the fixed establishment in
Italy but directly from the place in which that person is princi-
pally established abroad.

a general

rule

as

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Aresu and M. Afonso, Agents)

Defendant: Italian Republic

Such a measure, which makes it excessively cumbersome for the
taxpayers concerned to comply with their tax obligations, is, in
the Commission's view, contrary to the provisions and funda-
mental principles of the above-mentioned VAT directives, which
provide that a foreign taxpayer who has a fixed establishment in
Italy and who engages in commercial transactions in Italy from