# C_2005019EN.01000301.xml

| 22.1.2005 | EN | Official Journal of the European Union | C 19/3 |
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22.1.2005

EN

Official Journal of the European Union

C 19/3

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Grand Chamber)

of 30 November 2004

in Case C-16/03 (reference for a preliminary ruling from the Hovrätten över Skåne och Blekinge): Peak Holding AB v Axolin-Elinor AB (1)

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(Trade marks - Directive 89/104/EEC - Article 7(1) - Exhaustion of the rights conferred by a trade mark - Putting on the market of the goods in the EEA by the proprietor of the trade mark - Concept - Goods offered for sale to consumers and then withdrawn - Sale to an operator established in the EEA with the obligation to put the goods on the market outside the EEA - Resale of the goods to another operator established in the EEA - Marketing in the EEA)

(2005/C 19/04)

Language of the case: Swedish

In Case C-16/03: reference for a preliminary ruling under Article 234 EC from the Hovrätten över Skåne och Blekinge (Sweden), made by decision of 19 December 2002, received at the Court on 15 January 2003, in the proceedings between Peak Holding AB and Axolin-Elinor AB, formerly Handelskompaniet Factory Outlet i Löddeköpinge AB – the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta, Presidents of Chambers, C. Gulmann (Rapporteur), J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 30 November 2004, in which it has ruled:

| 1. | Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that goods bearing a trade mark cannot be regarded as having been put on the market in the European Economic Area where the proprietor of the trade mark has imported them into the European Economic Area with a view to selling them there or where he has offered them for sale to consumers in the European Economic Area, in his own shops or those of an associated company, without actually selling them. |
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1.

Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that goods bearing a trade mark cannot be regarded as having been put on the market in the European Economic Area where the proprietor of the trade mark has imported them into the European Economic Area with a view to selling them there or where he has offered them for sale to consumers in the European Economic Area, in his own shops or those of an associated company, without actually selling them.

| 2. | In circumstances such as those of the main proceedings, the stipulation, in a contract of sale concluded between the proprietor of the trade mark and an operator established in the European Economic Area, of a prohibition on reselling in the European Economic Area does not mean that there is no putting on the market in the European Economic Area within the meaning of Article 7(1) of Directive 89/104, as amended by the Agreement on the European Economic Area, and thus does not preclude the exhaustion of the proprietor's exclusive rights in the event of resale in the European Economic Area in breach of the prohibition. |
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2.

In circumstances such as those of the main proceedings, the stipulation, in a contract of sale concluded between the proprietor of the trade mark and an operator established in the European Economic Area, of a prohibition on reselling in the European Economic Area does not mean that there is no putting on the market in the European Economic Area within the meaning of Article 7(1) of Directive 89/104, as amended by the Agreement on the European Economic Area, and thus does not preclude the exhaustion of the proprietor's exclusive rights in the event of resale in the European Economic Area in breach of the prohibition.

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(1)  OJ C 55 of 8.3.2003.

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