Case C-104/01: Reference for a preliminary ruling by the Hoge Raad, Netherlands, by order of that court of 23 February 2001 in the case of Libertel Groep B.V. against Benelux-Merkenbureau
Date: 2001-07-14
Institutions: Court of Justice
Subjects: interpretation of the law, trade mark, trade-mark law

C 200/38

EN

Official Journal of the European Communities

14.7.2001

(3)

In the assessment of the distinctive character of a specific
colour as a trade mark, must account be taken of whether,
with regard to that colour, there is a general interest in
availability, such as can exist in respect of signs which
denote a geographical origin?

(4) When considering the question whether a sign, for which
registration as a trade mark is sought, possesses the
distinctive character referred to at the beginning of Article
3(1) and in Article 3(1)(b) of the Directive, must the BMB
confine itself to an assessment in abstracto of distinctive
character or must it take account of all the actual facts of
the case, including the use made of the sign and the
manner in which the sign is used?

(1) OJ L 40 of 11.2.1989, p. 1.

for service in Luxembourg — appeal against the order of the
Court of First Instance of the European Communities (Third
Chamber) of 11 July 2000 in Case T-268/99 Fédération
Nationale d’Agriculture Biologique des Régions de France and
Others v Council [1999] ECR II-2893, seeking to have that
order set aside, the other party to the proceedings being
Council of
the European Union (Agents F. Anton and
J. Monteiro), the Court (Fifth Chamber), composed of A. La
Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward
(Rapporteur), S. von Bahr and C.W.A. Timmermans, Judges,
Advocate General: C. Stix-Hackl, R. Grass, Registrar, made an
order on 10 May 2001, the operative part of which is as
follows:

1.

2.

3.

4.

The appeal is dismissed.

It is unnecessary to give a decision on the applications for leave
to intervene.

Fédération Nationale d’Agriculture Biologique des Régions de
France (FNAB), Syndicat Européen des Transformateurs et
Distributeurs de Produits de l’Agriculture Biologique (SETRAB)
and Est Distribution Biogam Sàrl are to pay the costs.

CLESA SA, Danone SA and Compagnie Gervais Danone SA
are to bear their own costs.

(1) OJ C 335 of 25.11.2000.

Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of 29 March 2001 of that court in
the case of Cookies World Vertriebsges. m.b.H. i.L. v
Finanzlandesdirektion fur Tirol

Reference for a preliminary ruling by the Hoge Raad,
Netherlands, by order of that court of 23 February 2001
in the case of Libertel Groep B.V. against Benelux-
Merkenbureau

(Case C-155/01)

(2001/C 200/70)

(Case C-104/01)

(2001/C 200/69)

Reference has been made to the Court of Justice of the
European Communities by order of the Hoge Raad (High
Court), Netherlands, of 23 February 2001, received at the
Court Registry on 5 March 2001, for a preliminary ruling in
the case of Libertel Groep B.V. against Benelux-Merkenbureau
on the following questions:

(1)

Is it possible for a single specific colour which is
represented as such or is designated by an internationally
applied body of rules to acquire a distinctive character for
certain goods or services within the meaning of the
opening words of Article 3(1) and of Article 3(b) of
Council Directive 89/104/EEC of 21 December 1988 (1)?

(2)

If the answer to the first question is in the affirmative:

(a)

in what circumstances may it be accepted that a
single specific colour possesses a distinctive charac-
ter in the sense used above?

(b) does it make any difference if registration is sought
for a wide range of goods and/or services, rather
than for a specific product or service, or category of
goods or services respectively?

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichtsh-
of (Higher Administrative Court) of 29 March 2001, received
at the Court Registry on 11 April 2001, for a preliminary
ruling in the case of Cookies World Vertriebsges. m.b.H. i.L. v
Finanzlandesdirektion fur Tirol on the following question:

Is it compatible with the Sixth Council Directive 77/388/EEC
of 17 May 1977 (1) on the harmonisation of the laws of the
Member States relating to turnover taxes — Common system
of value added tax: uniform basis of assessment, in particular
Articles 5 and 6 thereof, for a Member State to treat the
following event as a taxable transaction: the incurring of
expenditure relating to services supplied abroad that, if they
had been supplied within the national territory to the trader,
would not entitle the trader to a deduction of input tax?

(1) OJ 1977 L 145, p. 1.