Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-218/01 (Reference for a preliminary ruling from the Bundespatentgericht (Germany): Henkel KGaA (Approximation of laws — Trade marks — Directive 89/104/EEC — Article 3(1)(b), (c) and (e) — Grounds for refusal to register — Three-dimensional shape-of-product mark — Distinctive character
Date: 2004-04-03
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, trade mark

C 85/4

EN

Official Journal of the European Union

3.4.2004

For the purposes of determining whether the ground for refusal set
out in Article 3(1)(c) of Directive 89/104 applies to such a mark, it
is irrelevant whether or not there are synonyms capable of designating
the same characteristics of the goods or services referred to in the
application for registration.

First, the prior authorisation procedure must be readily accessible and
capable of being completed within a reasonable time and, if it leads
to a refusal, the decision of refusal must be open to challenge before
the courts. Secondly, refusal to authorise marketing must be based on
a detailed assessment of the risk to public health, based on the most
reliable scientific data available and the most recent results of
international research.

(1) OJ C 233 of 12.8.2000.

(1) OJ C 108 of 7.4.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 5 February 2004

in Case C-95/01 (Reference for a preliminary ruling from
the tribunal de grande instance de Paris): John Greenham
v Léonard Abel (1)

(Free movement of goods — Articles 28 EC and 30 EC —
Prohibition on marketing foodstuffs to which vitamins and
minerals have been added — Justification — Proportionality)

(2004/C 85/04)

(Language of the case: French)

JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 February 2004

in Case C-218/01 (Reference for a preliminary ruling from
the Bundespatentgericht (Germany): Henkel KGaA (1)

(Approximation of laws — Trade marks — Directive 89/
104/EEC — Article 3(1)(b), (c) and (e) — Grounds for
refusal to register — Three-dimensional shape-of-product
mark — Distinctive character

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

(2004/C 85/05)

(Language of the case: German)

In Case C-95/01: Reference to the Court under Article 234 EC
by the Tribunal de grande instance de Paris (France) for a
preliminary ruling in the criminal proceedings pending before
that court against John Greenham and Léonard Abel, on the
interpretation of Articles 28 EC and 30 EC, the Court (Sixth
Chamber), composed of: V. Skouris, acting for the President of
the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken
(Rapporteur) and N. Colneric, Judges; J. Mischo, Advocate
General; H. von Holstein, Deputy Registrar, has given a
judgment on 5 February 2004, in which it has ruled:

Articles 28 EC and 30 EC must be interpreted as meaning that they
do not preclude a Member State from prohibiting the marketing
without prior authorisation of foodstuffs lawfully manufactured and
marketed in another Member State, where nutrients such as vitamins
or minerals have been added thereto other than those whose use has
been declared lawful in the first Member State, provided that certain
conditions are satisfied.

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

In Case C-218/01: reference to the Court under Article 234
EC by the Bundespatentgericht (Germany) for a preliminary
ruling in the proceedings brought before that court by Henkel
KGaA, on the interpretation of Article 3(1)(b), (c) and (e) 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 C. Gulmann, acting for the President of the
Chamber, J. N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen
and F. Macken (Rapporteur),
Judges; Advocate General:
D. Ruíz-Jarabo Colomer, Registrar: L. Hewlett, Principal
Administrator, has given a judgment on 12 February 2004, in
which it ruled:

3.4.2004

EN

Official Journal of the European Union

C 85/5

1.

2.

3.

the goods,

For three-dimensional trade marks consisting of the packaging
of goods which are packaged in trade for reasons linked to the
very nature of
the packaging thereof must be
assimilated to the shape of the goods, so that that packaging
may constitute the shape of the goods within the meaning of
Article 3(1)(e) of the First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks and may, where appropriate,
serve to designate characteristics of
the packaged goods,
including their quality, within the meaning of Article 3(1)(c) of
that directive.

For three-dimensional trade marks consisting of the packaging
of goods which are packaged in trade for reasons linked to the
very nature of the product, their distinctive character within the
meaning of Article 3(1)(b) of Directive 89/104 must be
assessed by reference to the perception of the average consumer
of such goods, who is reasonably well informed and reasonably
observant and circumspect. Such a trade mark must enable such
a consumer to distinguish the product concerned from those
of other undertakings without conducting an analytical or
comparative examination and without paying particular atten-
tion.

The distinctive character of a trade mark within the meaning of
Article 3(1)(b) of Directive 89/104 may be assessed solely on
the basis of national trade usage, without any need for other
administrative investigations to be undertaken in order to
determine whether and to what extent identical trade marks
have been registered or have been refused registration in other
Member States of the European Union.

The fact that an identical trade mark has been registered in one
Member State for identical goods or services may be taken into
consideration by the competent authority of another Member
State among all the circumstances which that authority must
take into account in assessing the distinctive character of a trade
mark, but it is not decisive regarding the latter’s decision to
grant or refuse registration of a trade mark.

On the other hand, the fact that a trade mark has been
registered in one Member State for certain goods or services can
have no bearing on the examination by the competent trade
mark registration authority of another Member State of the
distinctive character of a similar trade mark for goods or services
similar to those for which the first trade mark was registered.

(1) OJ C 227, 11.8.2001.

JUDGMENT OF THE COURT

(Third Chamber)

of 12 February 2004

in Case C- 330/01 P: Hortiplant SAT v Commission of the
European Communities (1)

(Agriculture — EAGGF — Cancellation and request for
repayment of financial assistance — Regulation (EEC)
No 4253/88 — Article 24(1) and (2) — Obligation on the
Commission to request the Member State concerned to
submit observations before cancelling financial assistance)

(2004/C 85/06)

(Language of the case: Spanish)

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

In Case C-330/01 P, Hortiplant SAT established in Amposta
(Spain), represented by C. Fernández Vicién and I. Moreno-
Tapia Rivas: APPEAL against the judgment of the Court of
First Instance of the European Communities (Fourth Chamber)
of 14 June 2001 in Case T-143/99 Hortiplant v Commission
[2001] ECR II-1665, seeking to have that judgment set aside,
the other party to the proceedings being: Commission of
the European Communities (Agents: L. Visaggio, assisted by
J. Guerra Fernández) with an address for service in Luxem-
bourg, the Court (Third Chamber), composed of: J. N. Cunha
Rodrigues, acting for the President of the Third Chamber, J.-
P. Puissochet and F. Macken (Rapporteur), Judges; S. Alber,
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 12 February 2004, in which it:

1. Dismisses the appeal;

2. Orders Hortiplant to pay the costs.

(1) OJ C 303 of 27.10.2001.