Case C-514/06 P: Judgment of the Court (First Chamber) of 18 September 2008 — Armacell Enterprise GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), nmc SA (Appeal — Community trade mark — Application for the Community word mark ARMAFOAM — Earlier Community trade mark NOMAFOAM — Relative ground for refusal — Similarity of the signs — Existence of a relative ground for refusal in part of the European Community)
Date: 2008-09-18
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, acoustics, action for annulment (EU), appeal, building materials, plastics, trade-mark law

22.11.2008

EN

Official Journal of the European Union

C 301/7

Parties to the main proceedings

Stroumsas

Applicants: Sot. Lelos kai Sia EE (C-468/06), Farmakemporiki AE
Emporias kai Dianomis Farmakeftikon Proionton (C-469/06),
Konstantinos Xidias kai Sia OE (C-470/06), Farmakemporiki AE
Emporias kai Dianomis Farmakeftikon Proionton (C-471/06),
Ionas
EPE
(C-473/06),
Farma-Group Messinias AE
(C-474/06), K.P. Marinopoulos AE Emporias kai Dianomis
Farmakeftikon Proionton (C-475/06), K.P. Marinopoulos AE
Emporias kai Dianomis Farmakeftikon Proionton (C-476/06),
Kokkoris D. Tsanas K. EPE and Others (C-477/06), Kokkoris D.
Tsanas K. EPE and Others (C-478/06)

EPE (C-472/06),

Farmakapothiki

Stroumsas

Ionas

Defendant: GlaxoSmithKline AEVE Farmakeftikon Proionton

Re:

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: A.
Folliard-Monguiral, acting as Agent), nmc SA (represented by: P.
Péters and T. de Haan, avocats)

Re:

Appeal against the judgment of the Court of First Instance (Fifth
Chamber) of 10 October 2006 in Case T-172/05 Armacell v
OHIM whereby the Court dismissed an action by the applicant
for the word mark ‘ARMAFOAM’ for goods in Class 20 for
annulment of Decision R 552/2004-1 of the First Board of
Appeal of the Office for Harmonisation in the Internal Market
(OHIM) of 23 February 2005 annulling the decision of the
Opposition Division which rejected the opposition brought by
the proprietor of the Community word mark ‘NOMAFOAM’ for
goods in Classes 11, 19, 20, 27 and 28

Reference for a preliminary ruling — Efetio Athinon — Inter-
pretation of Article 82 EC — Abuse of a dominant position —
Refusal of an undertaking holding a dominant position to meet
fully orders placed by pharmaceutical wholesalers, with the
intention of limiting their export activity and, consequently, the
harm caused to it by parallel trade

Operative part of the judgment

The Court:

1. Dismisses the appeal;

Operative part of the judgment

Article 82 EC must be interpreted as meaning that an undertaking
occupying a dominant position on the relevant market for medicinal
products which, in order to put a stop to parallel exports carried out by
certain wholesalers from one Member State to other Member States,
refuses to meet ordinary orders from those wholesalers, is abusing its
dominant position. It is for the national court to ascertain whether the
orders are ordinary in the light of both the size of those orders in rela-
tion to the requirements of the market in the first Member State and
the previous business relations between that undertaking and the
wholesalers concerned.

(1) OJ C 20, 27.1.2007.

Judgment of the Court (First Chamber) of 18 September
2008 — Armacell Enterprise GmbH v Office
for
Harmonisation in the Internal Market (Trade Marks and
Designs), nmc SA

(Case C-514/06 P) (1)

(Appeal — Community trade mark — Application for the
Community word mark ARMAFOAM — Earlier Community
trade mark NOMAFOAM — Relative ground for refusal —
Similarity of the signs — Existence of a relative ground for
refusal in part of the European Community)

(2008/C 301/12)

Language of the case: English

Parties

Appellant: Armacell Enterprise GmbH (represented by: O.
Spuhler, Rechtsanwalt)

2. Orders Armacell Enterprise GmbH to pay the costs.

(1) OJ C 56, 10.3.2007.

Judgment of the Court (Fourth Chamber) of 9 October
the
2008 — Marguerite Chetcuti v Commission of

European Communities

(Case C-16/07 P) (1)

(Appeal — Civil service — Competition internal
to the
institution — Rejection of candidature — Conditions of
admission)

(2008/C 301/13)

Language of the case: French

Parties

Appellant: Marguerite Chetcuti
avocat)

(represented by: M.-A. Lucas,

Other party to the proceedings: Commission of
the European
Communities (represented by: V. Joris and K. Herrmann, Agents)

Re:

Appeal against the judgment of
the Court of First Instance
(Fourth Chamber) of 8 November 2006 in Case T-357/04
Chetcuti v Commission,
Instance
dismissed the appellant's action for annulment of the decision
of the competition selection board of 22 June 2004 rejecting
her candidature and for annulment of the subsequent acts of the
competition procedure — Infringement of Articles 4, 27

in which the Court of First