Judgment — ECLI:EU:C:1997:517
Date: 1997-11-04
Language of the case: Dutch
Court formation: Full Court
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
Concepts: Protection of industrial and commercial property;Optional or mandatory reference;Definition of court or tribunal of a Member State;Effects of a mark
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Preliminary rulings — Reference to the Court — National court or tribunal for the purposes 
of Article 177 of the Treaty — Concept — Benelux Court of Justice — Included 
(EC Treaty, Art. 177) 
2. Preliminary rulings — Reference to the Court — Question of interpretation of Directive 
89/104 raised in proceedings concerning the interpretation of the Uniform Benelux Law on 
Trade Marks — Obligation, of both the Benelux Court of Justice and national courts giving 
judgments against which no appeal lies, to make a reference — Limits 
(EC Treaty, Art. 177, third para.; Council Directive 89/104) 
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SUMMARY — CASE C-337/95 
3. Approximation of Uw s — Trade marks — Directive 89/104 — Product put on the market in 
a Member State by the proprietor of a trade mark or with his consent — Use of the trade 
mark by a reseller for advertising purposes — Whether permissible 
(EC Treaty, Art. 36; Council Directive 89/104, Arts i and 7) 
4. Approximation of laws — Trade marks — Directive 89/104 — Product put on the market in 
a Member State by the proprietor of a trade mark or with his consent — Opposition by the 
proprietor of the trade mark to its use by a reseller for advertising purposes — Not permissible 
— Exception — Serious damage caused to the reputation of the trade mark 
(Council Directive 89/104, Art. 7(2)) 
5. Free movement of goods — Industrial and commercial property — Trade mark rights and 
copyright — Product put on the market in a Member State by the proprietor of a trade mark 
or with his consent — Opposition by the proprietor to the use of the product by a reseller for 
advertising purposes — Not permissible — Exception — Serious damage caused to the reputa­
tion of the product 
(EC Treaty, Arts 30 and 36) 
1. As a court common to more than one 
Member State which has the task of 
ensuring that the legal rules common to 
the three Benelux States are applied uni­
formly and reference to which is a step in 
the proceedings before the national courts 
leading to definitive interpretations of the 
common Benelux rules, the Benelux 
Court of Justice must be regarded as 
entitled to refer questions to the Court of 
Justice for a preliminary ruling. To allow 
such a court, faced with the task of inter­
preting Community rules in the perfor­
mance of its function, to follow the pro­
cedure provided for by Article 177 of the 
Treaty serves the purpose of that provi­
sion, which is to ensure the uniform 
interpretation of Community law. 
2. Where a question relating to the interpre­
tation of Directive 89/104, approximating 
the laws of the Member States relating to 
trade marks, is raised in proceedings in 
one of the Benelux Member States con­
cerning the interpretation of the Uniform 
Benelux Law on Trade Marks, a court 
against whose decisions there is no rem­
edy under national law, as is the case with 
both the Benelux Court of Justice and the 
Hoge Raad der Nederlanden, must make 
a reference to the Court of Justice under 
the third paragraph of Article 177 of the 
Treaty. However, that obligation loses its 
purpose and is thus emptied of its 
substance when the question raised is 
substantially the same as a question 
which has already been the subject of a 
preliminary ruling in the same national 
proceedings. 
3. On a proper interpretation of Articles 5 
and 7 of Directive 89/104, when trade-
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PARFUMS CHRISTIAN DIOR v EVORA 
-marked goods have been put on the 
Community market by the proprietor of 
the trade mark or with his consent, a 
reseller, besides being free to resell those 
goods, is also free to make use of the 
trade mark in order to bring to the pub­
lic's attention the further commercializa­
tion of those goods. If the right to make 
use of a trade mark in order to attract 
attention to further commercialization 
were not exhausted in the same way as 
the right of resale, the latter would be 
made considerably more difficult and the 
purpose of the 'exhaustion of rights' rule 
laid down in Article 7 would thus be 
undermined. 
4. The proprietor of a trade mark may not 
rely on Article 7(2) of Directive 89/104 to 
oppose the use of the trade mark by a 
reseller who habitually markets articles of 
the same kind, but not necessarily of the 
same quality, as the trade-marked goods, 
in ways customary in the reseller's sector 
of trade, for the purpose of bringing to 
the public's attention the further com­
mercialization of those goods, unless it is 
established that, having regard to the spe­
cific circumstances of the case, the use of 
the trade mark for this purpose seriously 
damages the reputation of the trade mark. 
A balance must be struck between the 
legitimate interest of the proprietor of the 
trade mark in being protected against 
resellers using his trade mark for advertis­
ing in a manner which could damage the 
reputation of the trade mark and the 
reseller's legitimate interest in being able 
to resell the goods in question by using 
advertising methods which are customary 
in his sector of trade. In the case of pres­
tigious, luxury goods, the reseller must 
not act unfairly in relation to the legiti­
mate interests of the proprietor of the 
trade mark. 
5. On a proper interpretation of Articles 30 
and 36 of the Treaty, the proprietor of a 
trade mark or holder of copyright may 
not oppose their use by a reseller who 
habitually markets articles of the same 
kind, but not necessarily of the same 
quality, as the protected goods, in ways 
customary in the reseller's sector of trade, 
for the purpose of bringing to the pub­
lic's attention the further commercializa­
tion of those goods, unless it is estab­
lished that, having regard to the specific 
circumstances of the case, the use of those 
goods for that purpose seriously damages 
their reputation. 
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