# C_2005132EN.01001701.xml

| 28.5.2005 | EN | Official Journal of the European Union | C 132/17 |
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28.5.2005

EN

Official Journal of the European Union

C 132/17

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Reference for a preliminary ruling from the Cour de Cassation (Belgium) by judgment of that court of 17 March 2005 in Levi Strauss & Co v Casucci Spa

(Case C-145/05)

(2005/C 132/31)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour de Cassation (Belgium) of 17 March 2005, received at the Court Registry on 31 March 2005, for a preliminary ruling in the proceedings between Levi Strauss & Co and Casucci Spa on the following questions:

| 1. | For the purposes of determining the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, in accordance with Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (1), must the court take into account the perception of the public concerned at the time when use commenced of the trade mark or similar sign which allegedly infringes the trade mark? |
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1.

For the purposes of determining the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, in accordance with Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (1), must the court take into account the perception of the public concerned at the time when use commenced of the trade mark or similar sign which allegedly infringes the trade mark?

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| 2. | If not, may the court take into account the perception of the public concerned at any time after commencement of the use complained of? Is it entitled in particular to take into account the perception of the public concerned at the time it delivers its ruling? |
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2.

If not, may the court take into account the perception of the public concerned at any time after commencement of the use complained of? Is it entitled in particular to take into account the perception of the public concerned at the time it delivers its ruling?

| 3. | Where, in application of the criterion referred to in the first question, the court finds that the trade mark has been infringed, is it entitled, as a general rule, to order cessation of the infringing use of the sign? |
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3.

Where, in application of the criterion referred to in the first question, the court finds that the trade mark has been infringed, is it entitled, as a general rule, to order cessation of the infringing use of the sign?

| 4. | Can the position be different if the claimant's trade mark has lost its distinctive character wholly or in part after commencement of the infringing use, but solely where that loss is due wholly or in part to an act or omission by the proprietor of that trade mark? |
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4.

Can the position be different if the claimant's trade mark has lost its distinctive character wholly or in part after commencement of the infringing use, but solely where that loss is due wholly or in part to an act or omission by the proprietor of that trade mark?

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(1)  OJ L 40, 11.02.1989, p. 1.

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