Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-283/01 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden): Shield Mark BV v Joost Kist h.o.d.n. Memex (Trade marks — Approximation of laws — Directive 89/104/EEC — Article 2 — Signs of which a trade mark may consist — Signs capable of being represented graphically — Sound signs — Musical notation — Written description — Onomatopoeia)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: interpretation of the law, patents licence, trade mark, trade-mark law

C 21/4

EN

Official Journal of the European Union

24.1.2004

JUDGMENT OF THE COURT

(Sixth Chamber)

represented by a stave divided into measures and showing, in
particular, a clef, musical notes and rests whose form indicates
the relative value and, where necessary, accidentals.

of 27 November 2003

(1) OJ C 275 of 29.9.2001.

in Case C-283/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Shield Mark BV v Joost
Kist h.o.d.n. Memex (1)

(Trade marks — Approximation of laws — Directive 89/
104/EEC — Article 2 — Signs of which a trade mark may
consist — Signs capable of being represented graphically —
Sound signs — Musical notation — Written description —
Onomatopoeia)

(2004/C 21/07)

(Language of the case: Dutch)

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

In Case C-283/01: 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 Shield Mark BV and Joost Kist h.o.d.n. Memex,
on the interpretation of Article 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), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, J. N. Cunha
Rodrigues,
J.-P. Puissochet, R. Schintgen and F. Macken
(Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-
eral; M.-F. Contet, Principal Administrator, for the Registrar,
has given a judgment on 27 November 2003, in which it has
ruled:

1. Article 2 of First Council Directive 89/104/EEC of 21 Decem-
ber 1988 to approximate the laws of the Member States
relating to trade marks is to be interpreted as meaning that
sound signs must be capable of being regarded as trade marks
provided that they are capable of distinguishing the goods or
services of one undertaking from those of other undertakings
and are capable of being represented graphically.

2. Article 2 of Directive 89/104 must be interpreted as meaning
that a trade mark may consist of a sign which is not in itself
capable of being perceived visually, provided that it can be
represented graphically, particularly by means of images, lines
or characters, and that its representation is clear, precise, self-
contained, easily accessible, intelligible, durable and objective.

In the case of a sound sign, those requirements are not satisfied
when the sign is represented graphically by means of a
description using the written language, such as an indication
that the sign consists of the notes going to make up a musical
work, or the indication that it is the cry of an animal, or by
means of a simple onomatopoeia, without more, or by means
of a sequence of musical notes, without more. On the other
those requirements are satisfied where the sign is
hand,

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 November 2003

in Case C-429/01: Commission of the European Communi-
ties v French Republic (1)

(Failure of a Member State to fulfil obligations — Failure to
transpose Directive 90/219/EEC — Genetically modified
organisms — Contained use)

(2004/C 21/08)

(Language of the case: French)

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

In Case C-429/01, Commission of the European Communities
(Agent: G. zur Hausen, assisted by M. van der Woude and
V. Landes) with an address for service in Luxembourg, v French
Republic (Agent: initially by G. de Bergues and D. Colas, then
by G. de Bergues and C. Isidoro), with an address for service in
Luxembourg, APPLICATION for a declaration that, by failing
to transpose correctly and in full Articles 14(a) and (b), 15(1)
and (2), 16(1) and 19(2) to (4) of Council Directive 90/219/
EEC of 23 April 1990 on the contained use of genetically
modified micro-organisms (OJ 1990 L 117, p. 1), as amended
by Commission Directive 94/51/EC of 7 November 1994
adapting to technical progress Directive 90/219 (OJ 1994
L 297, p. 29), and by failing to transpose the provisions of
that directive in respect of certain contained use by the
Ministry of Defence, the French Republic has failed to fulfil its
obligations under that directive and Article 249 EC, the Court
(Sixth Chamber), composed of: V. Skouris, acting for the
President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
F. Macken and N. Colneric (Rapporteur), Judges; F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 27 November 2003, in which it:

1. Declares that, by failing to transpose correctly and in full
Article 14(a) and (b), first subparagraph, third sentence, and
Article 19(2) to (4) of Council Directive 90/219/EEC of
23 April 1990 on the contained use of genetically modified
micro-organisms, as amended by Commission Directive 94/
51/EC of 7 November 1994 adapting to technical progress