Judgment of the Court of 20 November 2001 in Joined Cases C-414/99 to C-416/99 [reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (Patent Court)]: Zino Davidoff SA and A & G Imports Ltd (C-414/99), between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the rights conferred by a trade mark — Goods placed on the market outside the EEA — Imported into the EEA — Consent of the trade mark proprietor — Whether consent required to be express or implied — Law governing the contract Presumption of consent — Non-applicability)
Date: 2002-01-05
Institutions: Court of Justice
Subjects: brand name, interpretation of the law, marketing

C 3/10

EN

Official Journal of the European Communities

5.1.2002

2. Annuls the decision of the First Board of Appeal of the Office
for Harmonisation in the Internal market (Trade Marks and
Designs) of 31 July 1998 (Case R 35/1998-1) in so far as it
refused the application for registration of ‘BABY-DRY’ as a
trade mark on the basis of Article 7(1)(c) of Regulation
No 40/94;

3. Orders the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay the costs both at first
instance and on appeal.

(1) OJ C 6 of 8.1.2000.

JUDGMENT OF THE COURT

of 20 November 2001

in Joined Cases C-414/99 to C-416/99 [reference for a
preliminary ruling from the High Court of Justice of
England and Wales, Chancery Division (Patent Court)]:
Zino Davidoff SA and A & G Imports Ltd (C-414/99),
between Levi Strauss & Co., Levi Strauss (UK) Ltd and
Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi
Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale
UK Ltd (1)

(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the rights conferred by a trade mark — Goods
placed on the market outside the EEA — Imported into the
EEA — Consent of the trade mark proprietor — Whether
consent required to be express or implied — Law governing
the contract Presumption of consent — Non-applicability)

(2002/C 3/13)

(Language of the case: English)

In Joined Cases C-414/99 to C-416/99 (reference to the Court
under Article 234 EC) from the High Court of Justice of
England and Wales, Chancery Division (Patent Court) (United
Kingdom of Great Britain and Northern Ireland) for a prelimi-
nary ruling in the proceedings pending before that court
between Zino Davidoff SA and A & G Imports Ltd (C-414/99),
between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco
Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss &
Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd, formerly
Costco UK Ltd (C-410/99) — on the interpretation of Article 7
of First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on

the European Economic Area of 2 May 1992 (OJ 1994 L 1,
p. 3) — the Court, composed of: G.C. Rodrı´guez Iglesias,
President, P. Jann, N. Colneric and S. von Bahr (Presidents of
Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, A. La
Pergola, J.-P. Puissochet, L. Sevo´ n, V. Skouris and C.W.A. Tim-
mermans, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on
20 November 2001, in which it has ruled:

1. On a proper construction of 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, the consent of a trade mark proprietor to the
marketing within the European Economic Area of products
bearing that mark which have previously been placed on the
market outside the European Economic Area by that proprietor
or with his consent may be implied, where it follows from facts
and circumstances prior to, simultaneous with or subsequent to
the placing of the goods on the market outside the European
Economic Area which,
in the view of the national court,
unequivocally demonstrate that the proprietor has renounced
his right to oppose placing of the goods on the market within
the European Economic Area.

2.

Implied consent cannot be inferred:

— from the fact that the proprietor of the trade mark has not
communicated to all subsequent purchasers of the goods
placed on the market outside the European Economic
Area his opposition to marketing within the European
Economic Area;

— from the fact that the goods carry no warning of a
prohibition of their being placed on the market within the
European Economic Area;

— from the fact that the trade mark proprietor has transferred
the ownership of the products bearing the trade mark
without imposing any contractual reservations and that,
according to the law governing the contract, the property
right transferred includes, in the absence of such reser-
vations, an unlimited right of resale or, at the very least,
a right to market the goods subsequently within the
European Economic Area.

3. With regard to exhaustion of
exclusive right, it is not relevant:

the trade mark proprietor’s

— that the importer of goods bearing the trade mark is not
aware that the proprietor objects to their being placed on
the market in the European Economic Area or sold there
by traders other than authorised retailers, or

5.1.2002

EN

Official Journal of the European Communities

C 3/11

— that the authorised retailers and wholesalers have not
imposed on their own purchasers contractual reservations
setting out such opposition, even though they have been
informed of it by the trade mark proprietor.

(1) OJ C 6 of 8.1.2000; OJ C 79 of 18.3.2000.

JUDGMENT OF THE COURT

(Third Chamber)

of 13 November 2001

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 September 2001

in Case C-442/99 P: Cordis Obst und Gemüse Grosshandel
GmbH (1)

(Appeal — Common organisation of the market — Bananas
— Imports from ACP States and third countries — Request
for import licences — Transitional measures — Regulation
(EEC) No 404/93 — Principle of equal treatment)

(2002/C 3/14)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-442/99 P: Cordis Obst und Gemüse Grosshandel
GmbH, established in Ostrau (Germany),
(Rechtsanwalt:
G. Meier) — appeal against the judgment of the Court of First
Instance of the European Communities (Fifth Chamber) in
Case T-612/97 Cordis v Commission [1999] ECR II-2771,
seeking to have that judgment set aside, the other parties
to the proceedings being: Commission of
the European
Communities (Agent: K.-D. Borchardt) and French Republic
(Agents: K. Rispal-Bellanger and C. Vasak) — the Court
(Sixth Chamber), composed of: C. Gulmann, President of the
Chamber,
J.-P. Puissochet, R. Schintgen, N. Colneric and
J.N. Cunha Rodrigues (Rapporteur), Judges; J. Mischo, Advocate
General; H. von Holstein, Deputy Registrar, for the Registrar,
has given a judgment on 27 September 2001, in which it:

1. Dismisses the appeal;

2. Orders Cordis Obst und Gemüse Grosshiandel to pay the costs;

in Case C-427/00: Commission of the European Communi-
ties v United Kingdom of Great Britain and Northern
Ireland (1)

(Failure by a Member State to fulfil its obligations —
Quality of bathing water — Inadequate compliance with
Directive 76/160/EEC)

(2002/C 3/15)

(Language of the case: English)

In Case C-427/00: Commission of the European Communities
(Agent: R.B. Wainwright) v United Kingdom of Great Britain
and Northern Ireland (Agent: G. Amodeo, assisted by D. Wyatt)
— application for a declaration that by failing to ensure that
bathing water in the United Kingdom complies with the limit
values set in accordance with Article 3 of Council Directive
76/160/EEC of 8 December 1975 concerning the quality of
bathing water (OJ 1976 L 31, p. 1), the United Kingdom has
failed to fulfil its obligations under that Directive — the Court
(Third Chamber), composed of. C. Gulmann, acting for the
President of the Chamber, J.-P. Puissochet and J.N. Cunha
Rodrigues (Rapporteur),
Judges; D. Ruiz-Jarabo Colomer,
Advocate General; R. Grass, Registrar, has given a judgment
on 13 November 2001, in which it:

1. Declares that, since it has not ensured that bathing water
complied with the limit values set in accordance with Article 3
of Council Directive 761160/EEC of 8 December 1975,
concerning the quality of bathing water, the United Kingdom
of Great Britain and Northern Ireland has failed to fulfil its
obligations under that Directive.

2. Orders the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

3. Orders the French Republic to bear its own costs.

(1) OJ C 28 of 27.1.2001.

(1) OJ C 47 of 19.2.2000.