Opinion of the Advocate General — ECLI:EU:C:2006:444
Date: 2006-07-04
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Approximation of laws – Trade marks – Directive 89/104 – Rights conferred by a trade mark – Goods bearing the trade mark and placed under the external transit procedure – Trade mark enjoying protection in a Member State of transit but not in the destination Member State (Council Directive 89/104, Art. 5(1) and (3)) Article 5(1) and (3) of the First Directive 89/104 on Trade Marks is to be interpreted as meaning that the proprietor of a trade mark can prohibit the transit through a Member State in which that mark is protected of goods bearing the trade mark and placed under the external transit procedure, whose destination is another Member State where the mark is not so protected, only if he can prove that those goods are subject to the act of a third party while they are placed under the external transit procedure which necessarily entails their being put on the market in that Member State of transit. In that regard, it is in principle irrelevant whether goods whose destination is a Member State come from an associated State or a third country, or whether those goods have been manufactured in the country of origin lawfully or in infringement of the existing trade mark rights of the proprietor in that country. (see paras 23, 26-27, 41, operative part 1-2)