Judgment of the Court of 11 March 2003 in Case C-40/01 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden): Ansul BV v Ajax Brandbeveiliging BV (Trade marks — Directive 89/104/EEC — Article 12(1) — Revocation of trade mark owner's rights — Concept of genuine use of a trade mark — Maintenance of goods already sold and sales of replacement parts and accessories)
Date: 2003-05-10
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, marketing, trade-mark law

10.5.2003

EN

Official Journal of the European Union

C 112/3

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

of 20 March 2003

of 11 March 2003

in Case C-291/00 (Reference for a preliminary ruling from
the Tribunal de Grande Instance de Paris): LTJ Diffusion
SA v Sadas Vertbaudet SA (1)

(Trade marks — Approximation of laws — Directive 89/
104/EEC — Article 5(1)(a) — Notion of sign which is
identical with the trade mark — Use of the distinctive
element of the mark to the exclusion of other elements —
Use of all the elements making up the trade mark but with
the addition of other elements)

(2003/C 112/04)

(Language of the case: French)

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

In Case C-291/00: Reference to the Court under Article 234
EC by the Tribunal de grande instance de Paris (France) for a
preliminary ruling in the proceedings pending before that
court between LTJ Diffusion SA and Sadas Vertbaudet SA, on
the interpretation of Article 5(1)(a) 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), the Court, composed of: G. C. Rodríguez Iglesias,
President, M. Wathelet and R. Schintgen (Presidents of Cham-
bers), C. Gulmann, P. Jann, F. Macken (Rapporteur), N. Colner-
ic, S. von Bahr and J. N. Cunha Rodrigues, Judges; F. G. Jacobs,
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 20 March 2003, in
which it has ruled:

Article 5(1)(a) of First Council Directive 89/104/EEC of 21 Decem-
ber 1988 to approximate the laws of the Member States relating to
trade marks must be interpreted as meaning that a sign is identical
with the trade mark where it reproduces, without any modification or
addition, all the elements constituting the trade mark or where,
viewed as a whole, it contains differences so insignificant that they
may go unnoticed by an average consumer.

( 1) OJ C 273 of 23.9.2000.

in Case C-40/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Ansul BV v Ajax
Brandbeveiliging BV (1)

(Trade marks — Directive 89/104/EEC — Article 12(1) —
Revocation of trade mark owner’s rights — Concept of
genuine use of a trade mark — Maintenance of goods already
sold and sales of replacement parts and accessories)

(2003/C 112/05)

(Language of the case: Dutch)

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

In Case C-40/01: Reference to the Court under Article 234 EC
by the Hoge Raad der Nederlanden (Netherlands)
for a
preliminary ruling in the proceedings pending before that
court between Ansul BV and Ajax Brandbeveiliging BV, on the
interpretation of Article 12(1) 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), the Court, composed of: G. C. Rodríguez Iglesias,
President,
J.-P. Puissochet (Rapporteur), M. Wathelet and
C. W. A. Timmermans, Presidents of Chamber, C. Gulmann,
A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric and
S. von Bahr,
Judges; D. Ruiz-Jarabo Colomer, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-
trar, has given a judgment on 11 March 2003, in which it has
ruled:

1. Article 12(1) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks must be interpreted as meaning
that there is ‘genuine use’ of a trade mark where the mark is
function, which is to
used in accordance with its essential
guarantee the identity of the origin of the goods or services for
which it is registered, in order to create or preserve an outlet for
those goods or services; genuine use does not include token use
for the sole purpose of preserving the rights conferred by the
mark. When assessing whether use of the trade mark is genuine,
regard must be had to all the facts and circumstances relevant
to establishing whether the commercial exploitation of the mark
is real, particularly whether such use is viewed as warranted in
the economic sector concerned to maintain or create a share in
the market for the goods or services protected by the mark, the
nature of the goods or services at issue, the characteristics of the
market and the scale and frequency of use of the mark. The fact
that a mark that is not used for goods newly available on the
market but for goods that were sold in the past does not mean
that its use is not genuine, if the proprietor makes actual use of
the same mark for component parts that are integral to the

C 112/4

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Official Journal of the European Union

10.5.2003

make-up or structure of such goods, or for goods or services
directly connected with the goods previously sold and intended
to meet the needs of customers of those goods.

2.

It is for the national court to draw the consequences for the
resolution of the dispute before it of the interpretation of the
Community law concept of ‘genuine use’ of the trade mark given
in the reply to the first question referred for a preliminary ruling.

( 1) OJ C 95 of 24.3.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 20 March 2003

in Case C-135/01: Commission of the European Communi-
ties v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations — Directive
98/56/EC — Marketing of propagating material of orna-
mental plants — Failure to transpose within the prescribed
period — Difficulties of interpretation)

(2003/C 112/06)

(Language of the case: German)

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

In Case C-135/01, Commission of the European Communities
(Agent: G. Braun) v Federal Republic of Germany (Agents:
W.-D. Plessing and B. Muttelsee-Schön): Application for a
declaration that, by failing within the prescribed period to
adopt all the laws, regulations and administrative measures
law Council
necessary in order to transpose into national
Directive 98/56/EC of 20 July 1998 on the marketing of
propagating material of ornamental plants (OJ 1998 L 226,
p. 16), the Federal Republic of Germany has failed to fulfil its
obligations under the EC Treaty and that directive, the Court
(Sixth Chamber), composed of: J.-P. Puissochet, President of
the Chamber, C. Gulmann and V. Skouris (Rapporteur),
F. Macken and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed,
Advocate General; R. Grass, Registrar, has given a judgment
on 20 March 2003, in which it has ruled:

1. Declares that, by failing within the prescribed period to adopt
all the laws, regulations and administrative measures necessary
to transpose into national law Council Directive 98/56/EC of
20 July 1998 on the marketing of propagating material of
ornamental plants, the Federal Republic of Germany has failed
to fulfil its obligations under that directive;

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 161 of 2.6.2001.

JUDGMENT OF THE COURT

of 11 March 2003

in Case C-186/01 (Reference for a preliminary ruling from
the Verwaltungsgericht Stuttgart): Alexander Dory v
Federal Republic of Germany (1)

(Inapplicability of Community law to compulsory military
service — Equal treatment of men and women — Article 2
of Directive 76/207/EEC — Compulsory military service in
Germany limited to men only — Directive not applicable)

(2003/C 112/07)

(Language of the case: German)

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

(Germany)

In Case C-186/01: Reference to the Court under Article 234
EC by the Verwaltungsgericht Stuttgart
for a
preliminary ruling in the proceedings pending before that
court between Alexander Dory and Federal Republic of
Germany, on the interpretation of Article 2 of Council
Directive 76/207/EEC of 9 February 1976 on the implemen-
tation of the principle of equal treatment for men and women
as regards access to employment, vocational training and
promotion, and working conditions (OJ 1976 L 39, p. 40),
and, more generally, on the compatibility with Community
law of
the limitation of compulsory military service in
Germany to men, the Court, composed of: G.C. Rodríguez
Iglesias, President, J.-P. Puissochet (Rapporteur), M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
bers), C. Gulmann, D.A.O. Edward, P.
Jann, V. Skouris,
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
Judges; C. Stix-Hackl, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
11 March 2003, in which it has ruled:

Community law does not preclude compulsory military service being
reserved to men.

(1) OJ C 200 of 14.7.2001.