Case C-488/06 P: Judgment of the Court (Second Chamber) of 17 July 2008 — L & D SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Julius Sämann Ltd (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 8(1)(b) and 73 — Figurative mark Aire Limpio — Community, national and international figurative marks representing a fir tree with various names — Opposition by the proprietor — Partial refusal to register — Inference of the particularly distinctive character of the earlier mark from evidence relating to another mark)
Date: 2008-07-17
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), appeal, cosmetic product, trade-mark law

30.8.2008

EN

Official Journal of the European Union

C 223/9

Judgment of the Court (Fourth Chamber) of 10 July 2008
(reference for a preliminary ruling from the Hoge Raad der
Nederlanden — Netherlands) — Fiscale eenheid Koninklijke
Ahold NV v Staatssecretaris van Financiën

2. Community law, as it now stands, entails no specific obligation for
Member States to permit taxable persons to round down per item
the amount of the tax on added value.

(Case C-484/06) (1)

(1) OJ C 20, 27.1.2007.

(Reference for a preliminary ruling — First and Sixth VAT
directives — Principles of fiscal neutrality and proportionality
concerning rounding of amounts of VAT —
— Rules

Rounding down per item)

(2008/C 223/12)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Fiscale eenheid Koninklijke Ahold NV

Defendant: Staatssecretaris van Financiën

Judgment of the Court (Second Chamber) of 17 July 2008
— L & D SA v Office for Harmonisation in the Internal
Market (Trade Marks and Designs), Julius Sämann Ltd

(Case C-488/06 P) (1)

(Appeal — Community trade mark — Regulation (EC)
No 40/94 — Articles 8(1)(b) and 73 — Figurative mark ‘Aire
Limpio’ — Community, national and international figurative
marks representing a fir tree with various names — Opposi-
tion by the proprietor — Partial refusal to register — Infe-
rence of the particularly distinctive character of the earlier
mark from evidence relating to another mark)

(2008/C 223/13)

Language of the case: Spanish

Re:

Parties

for

Article

Reference
a preliminary ruling — Hoge Raad der
Nederlanden — Interpretation
11A(1)(a),
of
first sentence, and Article 22(5) of Sixth
Article 22(3)(b),
Council Directive 77/388/EEC of 17 May 1977 on the harmoni-
sation of the laws of the Member States relating to turnover
taxes — Common system of value added tax: uniform basis of
first and
assessment (OJ 1977 L 145, p. 1) and Article 2,
second paragraphs, of First Council Directive 67/227/EEC of
11 April 1967 on the harmonisation of legislation of Member
States concerning turnover taxes (OJ, English Special Edition
1967, p. 14) — Rules on the rounding off of amounts of value
added tax

Appellant: L & D SA (represented by: S. Miralles Miravet,
abogado)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: J.
García Murillo, Agent),
Julius Sämann Ltd (represented by:
E. Armijo Chávarri, abogado)

Re:

Operative part of the judgment

1. In the absence of specific Community legislation, it is for Member
States to decide on the rules and methods of rounding amounts of
the tax on added value, but those States must, when making that
decision, observe the principles underpinning the common system of
that tax, in particular the principles of fiscal neutrality and propor-
tionality;

Appeal against the judgment of
the Court of First Instance
(Fourth Chamber) of 7 September 2006 in Case T-168/04 L &
D SA v Office for Harmonisation in the Internal Market (Trade
Marks and Designs) and Julius Sämann Ltd, by which the Court
dismissed an application for partial annulment of the decision
of the Second Board of Appeal of OHIM of 15 March 2004
(Case R 326/2003-2)
in respect of opposition proceedings
between Julius Sämann Ltd and L&D SA

C 223/10

EN

Official Journal of the European Union

30.8.2008

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders L & D SA to pay the costs.

(1) OJ C 20, 27.1.2007.

by private health care establishments on national television networks
while at
to
certain conditions, on local television networks.

the same time permitting such advertisements, subject

(1) OJ C 42, 24.2.2007.

Judgment of the Court (Second Chamber) of 17 July 2008
(reference for a preliminary ruling from the Giudice di
Pace di Genova — Italy) — Corporación Dermoestética SA
v To Me Group Advertising Media

(Case C-500/06) (1)

(Articles 3(1)(g) EC, 4 EC, 10 EC, 43 EC, 49 EC, 81 EC,
86 EC and 98 EC — National legislation prohibiting adver-
tisements for medical or surgical treatments of a cosmetic
nature)

Judgment of the Court (Fourth Chamber) of 17 July 2008
— Athinaïki Techniki AE v Commission of the European
Communities, Athens Resort Casino AE Symmetochon

(Case C-521/06 P) (1)

(Appeal — State aid — Aid granted by the Hellenic Republic
to the Hyatt Regency consortium — Complaint — Decision to
take no further action on the complaint — Regulation (EC)
No 659/1999 — Articles 4, 13 and 20 — Concept of ‘act
open to challenge’ for the purposes of Article 230 EC)

(2008/C 223/15)

Language of the case: French

(2008/C 223/14)

Language of the case: Italian

Parties

Referring court

Giudice di Pace di Genova

Parties to the main proceedings

Applicant: Corporación Dermoestética SA

Defendant: To Me Group Advertising Media

Intervener: Cliniche Futura Srl

Re:

Reference for a preliminary ruling — Giudice di Pace di Genova
— Interpretation of Articles 43 EC, 49 EC, 81 EC, 86 EC and
98 EC — Compatibility of a national provision prohibiting the
broadcasting of advertisements on national television networks
for medical and surgical treatments carried out in private health
care establishments and limiting expenditure on advertising to
5 % of income for the previous year

Operative part of the judgment

Articles 43 EC and 49 EC, read in conjunction with Articles 48 EC
and 55 EC, must be interpreted as precluding legislation, such as that
at issue in the main proceedings, in so far as it prohibits the broad-
casting of advertisements for medical and surgical treatments provided

Appellant: Athinaïki Techniki AE (represented by: S. A. Pappas,
dikigoros)

Other parties to the proceedings: Commission of the European
Communities (represented by: D. Triantafyllou, Agent), Athens
Resort Casino AE Symmetochon (represented by: F. Carlin,
Barrister, and N. Korogiannakis, dikigoros)

Re:

Appeal brought against the order of the Court of First Instance
(Second Chamber) of 26 September 2006 in Case T-94/05 Athi-
naïki Techniki AE v Commission, by which the Court of First
Instance dismissed as inadmissible the action seeking annulment
of the Commission's letter of 2 December 2004 informing the
then applicant that no further action would be taken in regard
to its complaint alleging that State aid had been granted by the
Hellenic Republic in the context of a public contract tendering
procedure — Concept of an act open to challenge for the
purposes of Article 230 EC

Operative part of the judgment

The Court:

1. Sets aside the order of the Court of First Instance of the European
Communities of 26 September 2006 in Case T-94/05 Athinaïki
Techniki v Commission.

2. Rejects

the preliminary plea of

inadmissibility raised by the
Commission of the European Communities before the Court of First
Instance of the European Communities.