# C_2014388EN.01000201.xml

| 3.11.2014 | EN | Official Journal of the European Union | C 388/2 |
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3.11.2014

EN

Official Journal of the European Union

C 388/2

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Request for a preliminary ruling from the Gerechtshof Den Haag (Netherlands) lodged on 7 August 2014 — TOP Logistics BV and Van Caem International BV v Bacardi & Co. Ltd and Bacardi International Ltd

(Case C-379/14)

2014/C 388/02

Language of the case: Dutch

Referring court

Referring court

Gerechtshof Den Haag

Parties to the main proceedings

Parties to the main proceedings

Appellants: TOP Logistics BV, Van Caem International BV

Appellants:

Respondents: Bacardi & Co. Ltd, Bacardi International Ltd

Respondents:

Questions referred

Questions referred

These questions concern goods originating outside the EEA which, after having been brought into the territory of the EEA (neither by the trade mark proprietor nor with its consent), are placed, in a Member State of the European Union, under the external transit procedure or under the customs warehousing procedure (within the meaning of the Community Customs Code: Regulation (EEC) No 2913/92 (1) (old) and Regulation (EC) No 450/2008 (2)).

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| 1. | Where, in circumstances such as those in the case at issue, such goods are subsequently placed under a duty suspension arrangement, must those goods then be regarded as having been imported within the meaning of Article 5(3)(c) of Directive 89/104/EEC (3) (now Directive 2008/95/EC) (4), with the result that there is ‘[use] (of the sign) in the course of trade’ that can be prohibited by the trade mark proprietor pursuant to Article 5(1) of that directive? |
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1.

Where, in circumstances such as those in the case at issue, such goods are subsequently placed under a duty suspension arrangement, must those goods then be regarded as having been imported within the meaning of Article 5(3)(c) of Directive 89/104/EEC (3) (now Directive 2008/95/EC) (4), with the result that there is ‘[use] (of the sign) in the course of trade’ that can be prohibited by the trade mark proprietor pursuant to Article 5(1) of that directive?

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| 2. | If Question 1 is answered in the affirmative, must it then be accepted that, in circumstances such as those in the case at issue, the mere presence in a Member State of such goods (which have been placed under a duty suspension arrangement in that Member State) does not prejudice, or cannot prejudice, the functions of the trade mark, with the result that the trade mark proprietor which invokes national trade mark rights in that Member State cannot oppose that presence? |
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2.

If Question 1 is answered in the affirmative, must it then be accepted that, in circumstances such as those in the case at issue, the mere presence in a Member State of such goods (which have been placed under a duty suspension arrangement in that Member State) does not prejudice, or cannot prejudice, the functions of the trade mark, with the result that the trade mark proprietor which invokes national trade mark rights in that Member State cannot oppose that presence?

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(1)  Council Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

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(2)  Regulation of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1).

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

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(4)  Directive of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version) (OJ 2008 L 299, p. 25).

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