Case C-278/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 26 June 2008 — Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH
Date: 2008-06-26
Institutions: Court of Justice
Subjects: Internet, advertising, interpretation of the law, search engine, trade mark, trade-mark law

C 223/30

EN

Official Journal of the European Union

30.8.2008

(Austria)

Reference for a preliminary ruling from the Oberster
lodged on 26 June 2008 — Die
Gerichtshof
BergSpechte Outdoor Reisen
Edi
Koblmüller GmbH v Günter Guni and trekking.at Reisen
GmbH

und Alpinschule

(Case C-278/08)

(2008/C 223/46)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Die BergSpechte Outdoor Reisen und Alpinschule Edi
Koblmüller GmbH

Defendants: Günter Guni and trekking.at Reisen GmbH

Questions referred

1. Must Article 5(1) of the First Council Directive 89/104/EEC
of 21 December 1988 to approximate the laws of
the
Member States relating to trade marks (‘Directive 89/104’) (1)
be interpreted as meaning that a trade mark is used in a
manner reserved for the proprietor of the trade mark if the
trade mark or a sign similar to it (such as the word compo-
nent of a word and figurative trade mark) is reserved as a
keyword with a search engine operator and advertising for
identical or similar goods or services therefore appears on
the screen when the trade mark or the sign similar to it is
entered as a search term?

2. If the answer to Question 1 is yes:

(A) Is the trade mark proprietor's exclusive right infringed
by the utilisation of a search term identical with the
trade mark for an advertisement for identical goods or
services, regardless of whether the accessed advertise-
ment appears in the list of hits or in a separate adver-
tising block and whether it is marked as a ‘sponsored
link’?

(B) In respect of the utilisation of a sign identical with the
trade mark for similar goods or services, or the utilisa-
tion of a sign similar to the trade mark for identical or
similar goods or services, is the fact that the advertise-
ment is marked as a ‘sponsored link’ and/or appears not
in the list of hits but in a separate advertising block
sufficient to exclude any likelihood of confusion?

(1) OJ 1989 L 40, p. 1.

Appeal brought on 25 June 2008 by the Commission of
the European Communities against the judgment delivered
by the Court of First Instance (Fifth Chamber, Extended
Composition) on 10 April 2008 in Case T-233/04 Kingdom
the Netherlands, supported by Federal Republic of
of
Germany v Commission of the European Communities

(Case C-279/08 P)

(2008/C 223/47)

Language of the case: Dutch

Parties

Appellant: Commission of the European Communities (repre-
sented by: H. van Vliet, K. Gross and C. Urraca Gaviedes,
Agents)

Other parties to the proceedings: Kingdom of
Federal Republic of Germany

the Netherlands,

Form of order sought

— Primarily:

(a) set aside the judgment under appeal;

(b) declare inadmissible the action seeking annulment of

the Decision;

(c) order the Kingdom of the Netherlands to pay the costs
of the proceedings before the Court of First Instance and
those of the present appeal;

— In the alternative:

(a) set aside the judgment under appeal;

(b) dismiss the action seeking annulment of the Decision;

(c) order the Kingdom of the Netherlands to pay the costs
of the proceedings before the Court of First Instance and
those of the present appeal.

Pleas in law and main arguments

— In its first plea, the Commission submits that the Court of
First Instance erred in declaring the action brought by the
Kingdom of the Netherlands to be admissible.

In the view of the Commission, it is clear from the Court's
case-law, and in particular from its order in Case C-164/02,
that a Member State cannot seek the annulment of a
Commission decision by which the Commission declares an
aid measure notified by that Member State to be compatible
with the common market.