Case C-259/02: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 17 June 2002, in the case of La Mer Technology Inc. against Laboratoires Goemar S.A.
Date: 2002-09-14
Institutions: Court of Justice
Subjects: interpretation of the law, trade mark, trade-mark law

C 219/6

EN

Official Journal of the European Communities

14.9.2002

Reference for a preliminary ruling by the Tribunale
Amministrativo Regionale per il Lazio by judgment of
that Court of 23 January 2002 in the cases of Telecom
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom
(C-251/02), Telecom Italia SpA,
intervener: Telemar
(C-252/02), Omnitel Pronto Italia SpA (C-253/02), and
WIND Telecomunicazioni SpA (C-256/02) against Mini-
stero del Tesoro, del Bilancio e della Programmazione
Econimica (now Ministero dell’ Economia e delle Finanze)
and Ministero delle Comunicazioni

(Cases C-250/02, C-251/02, C-252/02, C-253/02 and C-256/
02)

legislation, subjecting undertakings active on the Italian
market to conditions more oppressive than those pro-
vided for by those provisions of Community law in the
other States of the Union?

(1) OJ L 117 of 7.5.1997, p. 15.

(2002/C 219/09)

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 17 June 2002, in the case of La Mer
Technology Inc. against Laboratoires Goemar S.A.

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per il Lazio (Regional Administrative Court for
Lazio) of 23 January 2002, received at the Court Registry on
10 July 2002, for a preliminary ruling in the cases of Telecom
Italia Mobile (C-250/02), BLU SpA,
intervener: Albacom
(C-251/02), Telecom Italia SpA, intervener: Telemar (C-252/
02), Omnitel Pronto Italia SpA (C-253/02), and WIND Teleco-
municazioni SpA (C-256/02) against Ministero del Tesoro, del
Bilancio e della Programmazione Econimica (now Ministero
dell’ Economia e delle Finanze) and Ministero delle Comunica-
zioni (Ministry of the Treasury, Budget and Economic Planning
(now Ministry of Economy and Finance) and Ministry of
Communications) on the following questions:

1) Do Articles 6 and 11 of Directive 97/13/EC (1) of the
European Parliament and of the Council of 10 April 1997
on a common framework for general authorizations and
individual
licences in the field of telecommunications
services permit Member States to require only those
undertakings which hold a licence or authorisation to
carry on telecommunications activities to make financial
payments, whatever they may be called, other than and
in addition to those provided for by that Directive, and
are such payments in keeping with the principle of non-
discrimination?

2) Do Articles 6 and 11 of Directive 97/13/EC permit
Member States to introduce direct or indirect taxes or
other charges of a fiscal nature on activities consisting
of installing and supplying public telecommunications
networks, the supply to the public of voice telephony
services and mobile and personal communication ser-
vices, determined in variable percentage terms and having
equivalent effect to those prohibited by the Community
legislation?

3) May Articles 2, 3 and 95 of the Treaty and Article 12 of
Directive 97/13/EC be interpreted to mean that it is not
permissible for the Member States to introduce financial
charges contrary to the provisions of the harmonising

(Case C-259/02)

(2002/C 219/10)

Justice of the
Reference has been made to the Court of
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 17 June
2002, which was received at the Court Registry on 15 July
2002, for a preliminary ruling in the case of La Mer Technology
Inc. and Laboratoires Goemar S.A. on the following questions:

1. What factors should be taken into account when deciding
whether a mark has been ‘put to genuine use’ in a Member
State within the meaning of Articles 10(1) and 12(1) of
the First Council Directive 89/104 (1) of 21 December
1988?

In particular:

2.

3.

4.

5.

Should the extent of use of the mark in relation to the
goods or services for which the mark is registered in the
Member State be taken into account?

Is any amount of use however small, sufficient if it was
made with no purpose other than commercially dealing
in the goods or providing the service concerned?

If the answer to the foregoing question is ‘no’ what is the
test for determining how much use is sufficient, and in
particular does that test include a consideration of nature
and size of the business of the registered proprietor?

Is token or sham use to be disregarded, and in particular
is use whose sole or predominant purpose is defeating a
potential claim for revocation to be disregarded?

14.9.2002

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Official Journal of the European Communities

C 219/7

6. What types of use can be considered, and in particular is
it necessary to show that the mark has been used in the
course of trade in the Member State concerned and in
further particular would importation by a single customer
into that Member State be sufficient?

7.

Is it necessary to disregard use occurring after the filing
of the application for revocation even for the purpose of
testing whether use during the relevant period was
genuine?

Pleas in law and main arguments

Article 249 EC, which provides that a directive is to be binding
as to the result to be achieved upon each Member State,
implies the obligation upon each Member State to observe the
time-limits for implementation laid down in directives. That
time-limit expired on 24 October 1998 without the Italian
Republic having issued the provisions necessary to comply
with Article 5 of the directive referred to in the Commission’s
claims.

( 1) To approximate the laws of the Member States relating to trade

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

(1) OJ 1998 L 24, p. 1.

Action brought on 23 July 2002 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-268/02)

(2002/C 219/12)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-
ties on 23 July 2002 by the Commission of the European
Communities, represented by D. Martin, acting as Agent.

The applicant claims that the Court should:

— Declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 98/24/EC of 7 April 1998 on the
protection of the health and safety of workers from the
risks related to chemical agents at work (fourteenth
individual Directive within the meaning of Article 16(1)
of Directive 89/391/EEC) (1), the Grand Duchy of Luxem-
bourg has failed to fulfil
its obligations under that
directive; and

— Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition expired on 5 May
2001.

(1) OJ 1998 L 131, p. 11.

Action brought on 19 July 2002 by the Commission of
the European Communities against the Italian Republic

(Case C-267/02)

(2002/C 219/11)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 July
2002 by the Commission of the European Communities,
represented by M. Shotter and C. Loggi, acting as Agents.

The applicant claims that the Court should:

1. Declare that, by not adopting within the prescribed time-
limit, or in any event not notifying the laws, regulations
and administrative provisions necessary to comply with
Article 5 of Directive 97/66/EC (1) of
the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the
protection of privacy in the telecommunications sector,
the Italian Republic has failed to fulfil
its obligations
under Articles 5 and 15 of that directive;

2. Order the Italian Republic to pay the costs.