Judgment of the Court of 8 April 2003 in Case C-244/00 (Reference for a preliminary ruling from the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle sports + sportswear Handelsgesellschaft mbH, Michael Orth (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the right conferred by the trade mark — Evidence — Place where the goods are first placed on the market by the trade mark proprietor or with his consent — Consent of the trade mark proprietor to placing on the market in the EEA)
Date: 2003-06-07
Institutions: Court of Justice
Subjects: approximation of laws, brand name, interpretation of the law, originating product, trade-mark law

C 135/2

EN

Official Journal of the European Union

7.6.2003

8. Dismisses the remainder of the application;

9. Orders the parties to bear their own costs.

( 1) OJ C 246 of 28.08.1999.

JUDGMENT OF THE COURT

of 8 April 2003

in Case C-244/00 (Reference for a preliminary ruling from
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
Orth (1)

(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the
market in the EEA)

(2003/C 135/02)

(Language of the case: German)

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

In Case C-244/00: Reference to the Court under Article 177
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and
of Article 7(2) 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. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 8 April 2003, in which it has ruled:

A rule of evidence according to which exhaustion of the trade mark
right constitutes a plea in defence for a third party against whom the
trade mark proprietor brings an action, so that the existence of the
conditions for such exhaustion must, as a rule, be proved by the third
party who relies on it, is consistent with Community law and, in
particular, with Articles 5 and 7 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. However, the requirements
deriving from the protection of the free movement of goods enshrined,
inter alia, in Articles 28 EC and 30 EC may mean that this rule of
evidence needs to be qualified. Accordingly, where a third party
succeeds in establishing that there is a real risk of partitioning of
national markets if he himself bears that burden of proof, particularly
where the trade mark proprietor markets his products in the European
Economic Area using an exclusive distribution system, it is for the
proprietor of the trade mark to establish that the products were
initially placed on the market outside the European Economic Area
by him or with his consent. If such evidence is adduced, it is for the
third party to prove the consent of the trade mark proprietor to
subsequent marketing of the products in the European Economic
Area.

(1) OJ C 247 of 26.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 April 2003

in Case C-305/00 (Reference for a preliminary ruling
from the Oberlandesgericht Frankfurt am Main): Christian
Saatgut-Treuhandverwaltungsgesellschaft
Schulin

v

mbH (1)

(Plant varieties — System of protection — Article 14(3) of
Regulation (EC) No 2100/94 and Article 8 of Regulation
(EC) No 1768/95 — Use by farmers of the product of the
harvest — Obligation to provide information to the holder
of the Community right)

(2003/C 135/03)

(Language of the case: German)

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

In Case C-305/00: Reference to the Court under Article 234
EC by the Oberlandesgericht Frankfurt am Main (Germany) for
a preliminary ruling in the proceedings pending before that
court between Christian Schulin and Saatgut-Treuhandverwal-
tungsgesellschaft mbH, on the interpretation of the sixth
indent of Article 14(3) of Council Regulation (EC) No 2100/
94 of 27 July 1994 on Community plant variety rights (OJ
1994 L 227, p. 1), and Article 8 of Commission Regulation
(EC) No 1768/95 of 24 July 1995 implementing rules on
the agricultural exemption provided for in Article 14(3) of
Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
(Fifth Chamber), composed of: M. Wathelet, President of the
Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr