Case C-394/08 P: Appeal brought on 12 September 2008 by Zipcar, Inc. against the judgment of the Court of First Instance (Eighth Chamber) delivered on 25 June 2008 in Case T-36/07 Zipcar, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2008-09-12
Institutions: Court of Justice
Subjects: Canary Islands, EU Member State, EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, infringement of EU law, trade-mark law

C 285/28

EN

Official Journal of the European Union

8.11.2008

Pleas in law and main arguments

Pursuant to Article 3(2) of Decision No 280/2004/EC, read in
the Member
combination with Decision No 166/2005/EC,
States were required to communicate to the Commission, by
15 March 2005 and every two years thereafter information on
the national measures adopted to limit and/or reduce green-
house gas emissions and implement the Kyoto Protocol.

At the date on which the present action was brought, the defen-
dant had not communicated the measures in question to the
Commission.

(1) OJ 2004 L 49, p. 1.
(2) OJ 2005 L 55, p. 57.

nature of the municipal area in which the applicant pharma-
cies are located, as a precondition for obtaining a derogation
from those prohibitions within the Municipality of Rome?

2. Is it compatible with Articles 152 EC and 153 EC to impose
on the public pharmacy service, albeit with the aim of
protecting the health of consumers, conditions — such as
those laid down in Regional Law No 26/2002 — limiting or
precluding the possibility of extending the daily, weekly or
annual opening times of individual pharmacies?

Appeal brought on 12 September 2008 by Zipcar, Inc.
against the judgment of the Court of First Instance (Eighth
Chamber) delivered on 25 June 2008 in Case T-36/07
Zipcar, Inc. v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
10 September 2008 — Emanuela Sbarigia v Azienda USL
RM/A, Comune di Roma, Assiprofar — Associazione
Sindacale Proprietari Farmacia and Ordine dei Farmacisti
della Provincia di Roma

(Case C-394/08 P)

(2008/C 285/47)

Language of the case: English

(Case C-393/08)

(2008/C 285/46)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Emanuela Sbarigia

Parties

Appellants: Zipcar, Inc. (represented by: M. Elmslie, Solicitor, N.
Saunders, Barrister)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Canary Islands Car
SL

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of

25 June 2008 in case T-36/07 in its entirety

Defendants: Azienda USL RM/A, Comune di Roma, Assiprofar —
Associazione Sindacale Proprietari Farmacia and Ordine dei
Farmacisti della Provincia di Roma

— Remit the application to the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM) to allow
it to preceed

Questions referred

1. Is it compatible with the Community principles upholding
freedom of competition and freedom to provide services, laid
down inter alia in Articles 49 EC, 81 EC, 82 EC, 83 EC,
84 EC, 85 EC and 86 EC, to impose on pharmacies the
abovementioned prohibitions — whereby they are not
allowed either to decline to take an annual holiday or to
remain open whenever they so desire, beyond the maximum
limits at present allowed under the abovementioned provi-
sions of Lazio Regional Law No 26/2002 — and the conco-
mitant additional requirement, under Article 10(2) of that
Regional Law, of a prior discretionary assessment by the
Administration (carried out in agreement with the bodies
and organisations specified in that article) as to the special

— Order that the Respondent shall pay the Appellant's costs of
this Appeal and of the Appeal before the Court of First
Instance

Pleas in law and main arguments

The Appellant submits that the contested judgment should be
set aside on the following grounds:

1) Improper extension of the factual and legal context of the
review of the legality of the decision under appeal.
It is
submitted that the Court of First Instance in its judgment
changed the subject matter of the proceedings before the
Board of Appeal of the OHIM and took into account facts
and matters which extended the factual and legal context of
the dispute before the OHIM.

8.11.2008

EN

Official Journal of the European Union

C 285/29

2) Breach of Art 8(1)(b) of Regulation 40/94 (1). The Court of
First Instance stated in effect that the relevant public must be
considered to be solely Spanish speaking ‘even if it is accepted
in certain regions of Spain, such as the Canary Islands,
that
English is commonly spoken or that some Spanish consumers have
knowledge of English’. This amounts to an error in law because
it is in effect a ruling that in assessing the linguistic capacity
and understanding of the average consumer in any particular
case, the only question is one of determining the main or
primary language of the Member State in which the earlier
right subsists, without regard to other facts which are rele-
vant to determining the nature of the relevant consumer.

3) Further breach of Art 8(1)(b) of Regulation 40/94. Having
identified three categories of similarity between the goods
and services of the application and those of the alleged prior
right, namely ‘in part identical’, ‘in part very similar’, and ‘in
part not materially different’ the Court erred in law by failing
to consider the effect of these three different categories in
assessing whether there was a likelihood of confusion.

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

Community trade mark (OJ L 11, 14.1.1994, p. 1).

Action brought on 16 September 2008 — Commission of
the European Communities v Kingdom of Spain

(Case C-400/08)

(2008/C 285/48)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa, R. Vidal Puig acting as Agents, and C.
Fernández Vicién and I. Moreno-Tapia Rivas, lawyers)

Defendant: Kingdom of Spain

Form of order sought

commerce and the legislation of
the Autonomous Com-
munity of Catalonia applicable in the matter (Law 18/2005
on trading establishments, Decree 378/2006 implementing
Law 18/2005, and Decree 379/2006 approving the new
sectional
the
Kingdom of Spain has failed to fulfil its obligations under
Article 43 EC;

trading establishments),

territorial plan for

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

issue (Law 7/1996,
The Spanish and Catalan legislation at
Catalan Law 28/2005, Catalan Decrees 378/2006 and
379/2006)
requires any operator wishing to start, extend,
change its activity, transfer or assign a large shopping centre, to
obtain a licence from the Generalidad,
in addition to the
compulsory municipal license required to start up an activity,
the latter being intended to verify that
the establishment
conforms to the urban standards in force. The issue of commer-
cial
to set of criteria, which include the
compatibility of the project with the urban plan for commercial
establishments (so that no establishment can be authorised if it
does not comply with all the decisions in the plan), the location
of the project in a consolidated urban area and the extent of
market penetration by the applicant undertaking.

licences is subject

The Commission takes the view that the Spanish and Catalan
legislation at
issue constitute unjustified restrictions on the
freedom of establishment within the meaning of Article 43 EC
for the following reasons:

1. The requirement of a commercial license — in addition to
the municipal license — issued according to certain criteria
which relate not only to planning and the environment, but
also to the potential economic repercussions of the creation
certain kinds of large scale shopping centres on the competi-
tive structure of the distribution market, and to the existence
of a ‘market requirement’, makes the establishment of certain
kinds of large scale shopping centres very difficult.

2. The national legislation concerned has a discriminatory effect
in that it facilitates the establishment of smaller shopping
centres (which correspond to the traditional commercial
distribution structure in Catalonia and,
local
commerce) as compared to the establishment of large shop-
ping centres (which correspond to the distribution model
used by companies from other Community States).

therefore,

— declare that, by imposing restrictions on the establishment
of shopping centres, deriving from Law 7/1996 on retail

The Commission takes the 46 of the EC Treaty (public policy,
public security or public health) which, moreover, have not been
relied on by the national authorities.