# C_2010134EN.01002301.xml

| 22.5.2010 | EN | Official Journal of the European Union | C 134/23 |
| --- | --- | --- | --- |

22.5.2010

EN

Official Journal of the European Union

C 134/23

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 4 March 2010 — Frisdranken Industrie Winters BV v Red Bull GmbH

(Case C-119/10)

2010/C 134/35

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicant: Frisdranken Industrie Winters BV

Applicant:

Defendant: Red Bull GmbH

Defendant:

Questions referred

Questions referred

| 1. | (a) | Is the mere ‘filling’ of packaging which bears a sign (as referred to in paragraph 3.1 (iv) above) to be regarded as using that sign in the course of trade within the meaning of Article 5 of the Trade Mark Directive, (1) even if that filling takes place as a service provided to and on the instructions of another person, for the purposes of distinguishing that person’s goods? |
| --- | --- | --- |

1.

(a)

Is the mere ‘filling’ of packaging which bears a sign (as referred to in paragraph 3.1 (iv) above) to be regarded as using that sign in the course of trade within the meaning of Article 5 of the Trade Mark Directive, (1) even if that filling takes place as a service provided to and on the instructions of another person, for the purposes of distinguishing that person’s goods?

1

| (b) | Does it make any difference to the answer to question 1.a if there is an infringement for the purposes of Article 5(1)(a) or (b)? |
| --- | --- |

(b)

Does it make any difference to the answer to question 1.a if there is an infringement for the purposes of Article 5(1)(a) or (b)?

| 2. | If the answer to question 1.a is in the affirmative, can using the sign then also be prohibited in the Benelux on the basis of Article 5 of the Trade Mark Directive if the goods bearing the sign are destined exclusively for export to countries outside (a) the Benelux area or (b) the European Union, and they cannot — except in the undertaking where the filling took place — be seen therein by the public? |
| --- | --- |

2.

If the answer to question 1.a is in the affirmative, can using the sign then also be prohibited in the Benelux on the basis of Article 5 of the Trade Mark Directive if the goods bearing the sign are destined exclusively for export to countries outside (a) the Benelux area or (b) the European Union, and they cannot — except in the undertaking where the filling took place — be seen therein by the public?

| 3. | If the answer to question II (a or b) is in the affirmative, what criterion must be used when answering the question whether there has been trade-mark infringement: should the criterion be the perception of an average consumer who is reasonably well-informed and reasonably observant and circumspect in the Benelux or alternatively in the European Union — who then in the given circumstances can only be determined in a fictional or abstract way — or must a different criterion be used in this case, for example, the perception of the consumer in the country to which the goods are exported? |
| --- | --- |

3.

If the answer to question II (a or b) is in the affirmative, what criterion must be used when answering the question whether there has been trade-mark infringement: should the criterion be the perception of an average consumer who is reasonably well-informed and reasonably observant and circumspect in the Benelux or alternatively in the European Union — who then in the given circumstances can only be determined in a fictional or abstract way — or must a different criterion be used in this case, for example, the perception of the consumer in the country to which the goods are exported?

---

(1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).

1

---