Case C-481/08 P: Appeal brought on 10 November 2008 by Alcon Inc. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 10 September 2008 in Case T-106/07 Alcon Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2008-11-10
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, pharmaceutical product, trade-mark law

24.1.2009

EN

Official Journal of the European Union

C 19/15

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale della Sicilia (Italy)
lodged on
6 November 2008 — Dow Italia Divisione Commerciale srl
v Ministero dello Sviluppo Economico and Others

(Case C-479/08)

(2009/C 19/25)

Language of the case: Italian

5. In accordance with the ‘polluter pays’ principle and the prin-
ciple of proportionality, may the Administration require
action to be taken where there has been no assessment of
the appropriateness of the solutions imposed in the light of
the sacrifice required of the private individual concerned,
thereby prescribing measures that are wider or go further
than those strictly necessary for attainment of the aim which
that authority is required to achieve?

Referring court

Tribunale Amministrativo Regionale della Sicilia

Parties to the main proceedings

Applicant: Dow Italia Divisione Commerciale srl

Appeal brought on 10 November 2008 by Alcon Inc.
against the judgment of the Court of First Instance (Fourth
Chamber) delivered on 10 September 2008 in Case
T-106/07 Alcon Inc. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-481/08 P)

(2009/C 19/26)

Defendant: Ministero dello Sviluppo Economico and Others

Language of the case: English

Questions referred

Parties

1. Does the ‘polluter pays’ principle preclude national legisla-
tion, and in particular Article 2050 of the [Italian] Civil
Code, which allows the Public Authority, where a number of
industrial operators operate within the contaminated site, to
impose on them the burdens of the decontamination of that
site, without prior ascertainment on an individual basis of
their respective responsibility for the pollution, or in any
event merely because they are deemed accountable by virtue
of their ownership of the means of production and are there-
fore subject to strict liability for the damage they cause to
the environment or may they in any event be required to
reinstate the area around the widespread pollution identified
there even where no material causation has been established
for the pollution and there is no proportional basis for it?

2. In accordance with the ‘polluter pays’ principle, may the
Administration require the costs of safety measures, deconta-
mination and environmental reinstatement to be borne by
persons established in contaminated areas, without
there
having been any prior ascertainment of the existence of a
causal link between the conduct and the pollution identified?

3. In accordance with the ‘polluter pays’ principle and the prin-
ciple of proportionality, may persons within contaminated
areas be required to undertake action that does not directly
reflect their individual contributions and is not proportionate
to such contributions?

4. In accordance with the ‘polluter pays’ principle and the prin-
ciple of proportionality, may persons who have not contrib-
uted to the release of substances polluting the environment
be made subject to obligations involving safety, decontamina-
tion and environmental-reinstatement measures,
the costs
if not identical, to
and actions involved being equivalent,
those imposed on persons who,
in contrast, have in fact
contributed to the release of substances polluting the envir-
onment?

Appellant: Alcon Inc. (represented by: M. Graf, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market
(Trade Marks and Designs), *Acri.Tec AG
Gesellschaft für ophthalmologische Produkte

Form of order sought

The appellant claims that the Court should:

— Annul the Judgment under appeal and annul the contested

decision

— Order OHIM to bear the costs

Pleas in law and main arguments

The appellant contends that the contested judgment should be
set aside on the following grounds:

— Distortion of facts and evidence since the relevant consu-
mers are normal consumers. This is a question of law which
must be decided by the Court even when the argument was
first raised in the oral hearing, ‘da mihi facta, dabo tibi ius’.

— Error in application and interpretation of Article 8(1)(b) of
Regulation No 40/94 (1) and distortion of facts and evidence
since apparently only the pronunciation in the English
language of the marks ‘BioVisc’ and ‘DUOVISC’ was taken
into account, not the pronunciation in the French language.

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

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