CELEX: C2003/146/28
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-106/03 P: Appeal brought on 27 February 2003 by fax, confirmed by original lodged on 7 March 2003, by Védial SA against the judgment delivered on 12 December 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-110/01 between Védial SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party being France Distribution

C 146/16                EN                         Official Journal of the European Union                                      21.6.2003
2.    Order the Federal Republic of Germany to pay the costs.              Reference for a preliminary ruling by the Tribunale di
                                                                           Firenze by order of that Court of 3 February 2003 in the
                                                                                    criminal proceedings against Maria Pupino
                                                                                                   (Case C-105/03)
Pleas in law and main arguments
                                                                                                   (2003/C 146/27)
—     Provisions designed to transpose Article 6(3) of the
      directive are to be evaluated in terms of whether they
      require an assessment of the implications in the case of
      all projects likely to have a significant effect on special
                                                                           Reference has been made to the Court of Justice of the
      areas of conservation. Whether a particular effect may be
      significant cannot be decided solely by reference to                 European Communities by order of the Tribunale di Firenze
      the project, but only by taking into consideration the               (District Court, Florence) — Office of the Magistrate in charge
                                                                           of preliminary enquiries — of 3 February 2003, received at
      conservation aims of each individual area of conservation
      which may be affected and the nature and extent of the               the Court Registry on 5 March 2003, for a preliminary ruling
                                                                           in the criminal proceedings against Maria Pupino on the
      habitats and species present in each individual area.
      However, the definition of ‘projects’ contained in Para-             following question:
      graph 10(1)(11)(b) and (c) of the Bundesnaturschutzge-
      setz (Federal Law on Nature Conservation) does not take
      into account areas of conservation. Even if theoretical              Are Articles 2, 3 and 8 of Council Framework Decision 220
      evidence is produced to show that, despite the restrictions          of 15 March 2001 on the standing of victims in criminal
      contained in the definition, all conceivable projects likely         proceedings to be interpreted as precluding national legislation
      to have a significant effect on special areas of conservation        such as that in Articles 392(1a) and 398(5a) of the Italian
      are in fact covered, there would still be no guarantee that          Code of Criminal Procedure, which do not provide that, in
      projects with atypical effects of, in principle, a less              respect of offences other than sexual offences or those with a
      apparent nature would be covered if they were likely to              sexual background, the testimony of witnesses who are minors
      be significant in an actual individual case. In particular,          under 16 may be heard at the stage of the preliminary
      small habitats containing unusual species may react much             enquiries, in a Special Inquiry (‘incidente probatorio’) and
      more sensitively to influences than may be anticipated               under special arrangements, for example for the recording of
      by provisions concerning projects, which standardise                 testimony using audiovisual and sound recording equipment.
      categories.
—     It is contrary to Article 6(3) and (4) of the directive for
      regard not to be had to pollution by noxious substances
      outside a (not clearly defined) area where the effects of a
      project are felt, which is the position under Paragraph 36
      of the Bundesnaturschutzgesetz.
                                                                           Appeal brought on 27 February 2003 by fax, confirmed
                                                                           by original lodged on 7 March 2003, by Védial SA against
—     Restricting the protection of sites where animals nest,              the judgment delivered on 12 December 2002 by the
      breed, live or find refuge to cases where there are                  Fourth Chamber of the Court of First Instance of the
      deliberate effects (Paragraph 43(4) of the Bundesnatur-              European Communities in Case T-110/01 between Védial
      schutzgesetz) is not consistent with Article 12(1)(d) of             SA and the Office for Harmonisation in the Internal
      the directive, the clear wording of which indicates that             Market (Trade Marks and Designs) (OHIM), the other
      intention is not necessary in the context of the prohibition                       party being France Distribution
      concerning deterioration or destruction of breeding sites
      or resting places.
                                                                                                  (Case C-106/03 P)
—     Paragraph 43(4) of the Bundesnaturschutzgesetz also
      provides for derogations from the provisions concerning                                      (2003/C 146/28)
      the protection of species in favour of intervention or
      measures already authorised, without taking into account
      the fact that at the time of authorisation it may not yet
      have been known that a protected species is affected.                An appeal against the judgment delivered on 12 December
                                                                           2002 by the Fourth Chamber of the Court of First Instance of
                                                                           the European Communities in Case T-110/01 between Védial
                                                                           SA and the Office for Harmonisation in the Internal Market
( 1) OJ L 206, 22.7.1992, p. 7.
                                                                           (Trade Marks and Designs) (OHIM), the other party being
                                                                           France Distribution, was brought before the Court of Justice of
                                                                           the European Communities on 27 February 2003 by fax,
                                                                           confirmed by original lodged on 7 March 2003, by Védial SA.
 ---pagebreak--- 21.6.2003               EN                          Official Journal of the European Union                                         C 146/17
The appellant claims that the Court should:                                       In addition, the Court of First Instance did not apply the
                                                                                  interdependence rule clearly. The Court of First Instance
                                                                                  did not raise the point that the claimed low degree of
—     set aside the judgment of the Court of First Instance of                    similarity between the marks was not offset by the high
      12 December 2002 in Case T-110/01 and accordingly                           degree of similarity between the goods and the strongly
                                                                                  distinctive character of the applicant’s trade mark.
      —     acting pursuant to Article 54 of the Statute of the
                                                                                  Finally, the Court of First Instance infringed the concept
            Court of Justice, give final judgment in the matter,
            granting the forms of order sought by the applicant                   of ‘likelihood of confusion’ by limiting the public con-
            before the Court of First Instance;                                   cerned to the ‘targeted public’, the latter comprising only
                                                                                  consumers likely to acquire the marked goods, whereas
                                                                                  the public concerned consists of all persons likely to be
      —     in the alternative: refer the case back to the Court of               confronted with the mark, which is very different.
            First Instance for judgment;
                                                                            (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
—     in any case: order OHIM to pay the costs.                                  Community trade mark (OJ L 11, 14.1.1994, p. 1).
Pleas in law and main arguments
—     Plea alleging breach of the ‘principle of party disposition’
                                                                            Appeal brought on 27 February 2003 by fax, confirmed
      The ‘principle of party disposition’ is a general principle           by the original lodged on 7 March 2003, by The Procter
      of law under which the parties exercise, in principle, sole           & Gamble Company against the judgment delivered on
      control over legal proceedings. It is they who delimit the            12 December 2002 by the Fourth Chamber of the Court
      subject-matter of the dispute. The Court of First Instance            of First Instance of the European Communities in Case
      certainly acted in breach of the ‘principle of party                  T-63/01 between The Procter & Gamble Company and
      disposition’ by holding, contrary to the agreement of the             the Office for Harmonisation in the Internal Market
      parties on this point, that there was no similarity between                         (Trade Marks and Designs) (OHIM)
      the conflicting trade marks.
                                                                                                     (Case C-107/03 P)
—     Plea alleging breach of the right to a fair hearing
      The Court of First Instance also acted in breach of the                                         (2003/C 146/29)
      right to a fair hearing since it undermined the applicant’s
      legitimate expectation as to the delimitation of the
      dispute.
                                                                            An appeal against the judgment delivered on 12 December
—     Plea alleging infringements of the concept of ‘likelihood             2002 by the Fourth Chamber of the Court of First Instance of
      of confusion’ and the concept of ‘public’ within the                  the European Communities in Case T-63/01 between The
      meaning of Article 8(1)(b) of Regulation No 40/94 (1)                 Procter & Gamble Company and the Office for Harmonisation
                                                                            in the Internal Market (Trade Marks and Designs) (OHIM)
      The contested judgment rules out the likelihood of                    was brought before the Court of Justice of the European
      confusion on the ground that the public ‘will not                     Communities on 27 February 2003 by fax, confirmed by the
      attribute the same commercial origin to the goods in                  original lodged on 7 March 2003, by The Procter & Gamble
      question’. However, a likelihood of confusion also exists             Company.
      where the public may believe that the goods come from
      undertakings which are connected only economi-
      cally. Moreover, the Court of First Instance rejected any             The appellant claims that the Court should:
      likelihood of confusion on the ground that ‘even though
      there is identity and similarity between the goods covered
      by the conflicting marks, the visual, aural and conceptual            —     set aside the judgment of the Court of First Instance of
      differences between the signs’ mean that there is no                        12 December 2002 in Case T-63/01 and, in consequence
      likelihood of confusion, whereas the question is not                        thereof,
      whether there are differences between the conflicting
      marks, but whether there is identity or similarity between                  —     primarily: apply Article 54 of the Statute of the
      them and whether, considered as a whole with the                                  Court of Justice and give final judgment in the
      identity or similarity of the goods, the degrees of those                         matter, upholding the form of order sought by the
      similarities are such that there is a likelihood of confusion.                    appellant before the Court of First Instance;