Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-265/00 (Reference for a preliminary ruling from the Cour de justice Benelux): Campina Melkunie BV v Benelux-Merkenbureau (Approximation of laws — Trade marks — Directive 89/104/EEC — Article 3(1) — Ground for refusal to register — Neologism composed of elements each of which is descriptive of characteristics of the goods or services concerned)
Date: 2004-04-03
Institutions: Court of Justice
Subjects: approximation of laws, interpretation of the law, trade mark

3.4.2004

EN

Official Journal of the European Union

C 85/3

— by failing to adopt legislation ensuring the free movement
of foodstuffs for daily consumption and foodstuffs intend-
ed for particular nutritional uses, which are lawfully
manufactured and/or marketed in other Member States
but contain additives (such as vitamins, minerals and
other ingredients) not provided for under French legis-
lation;

JUDGMENT OF THE COURT

(Sixth Chamber)

of 12 February 2004

— by failing to provide for a simplified procedure for having
a substance included on the national list of authorised
additives, which is necessary if the above foodstuffs are
to be marketed in France;

in Case C-265/00 (Reference for a preliminary ruling from
the Cour de justice Benelux): Campina Melkunie BV v
Benelux-Merkenbureau (1)

— by hindering the marketing in France of the above
foodstuffs without establishing that their marketing poses
a risk to public health,

the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:

1. Declares that, by failing to provide for a simplified procedure
for having included on the national list of authorised nutrients
those added to foodstuffs for daily consumption and foodstuffs
intended for particular nutritional uses which are lawfully
manufactured and/or marketed in other Member States,

and

by hindering the marketing in France of certain foodstuffs, such
as food supplements and dietary products containing the
substances L-tartrate and L-carnitine, and confectionery and
drinks to which certain nutrients have been added, without
establishing that the marketing of such foodstuffs entails a real
risk for public health,

the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC);

2. Dismisses the remainder of the application; Orders the Com-
mission of the European Communities and the French Republic
to pay their own costs.

(1) OJ C 149 of 27.5.2000.

(Approximation of laws — Trade marks — Directive 89/
104/EEC — Article 3(1) — Ground for refusal to register
— Neologism composed of elements each of which is
descriptive of characteristics of the goods or services con-
cerned)

(2004/C 85/03)

(Language of the case: Dutch)

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

In Case C-265/00: Reference to the Court under Article 234
EC by the Benelux-Gerechtshof for a preliminary ruling in the
proceedings pending before that court between Campina
Melkunie BV and Benelux-Merkenbureau, on the interpretation
of Articles 2 and 3(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
(Sixth Chamber), composed of: V. Skouris, acting for the
President of the Sixth Chamber, C. Gulmann, J. N. Cunha
Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 12 February 2004,
in which it has ruled:

Article 3(1)(c) 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 trade mark
consisting of a neologism composed of elements, each of which is
descriptive of characteristics of the goods or services in respect of
which registration is sought, is itself descriptive of the characteristics
of those goods or services for the purposes of that provision, unless
there is a perceptible difference between the neologism and the mere
sum of its parts: that assumes that, because of the unusual nature of
the combination in relation to the goods or services, the word creates
an impression which is sufficiently far removed from that produced
by the mere combination of meanings lent by the elements of which
it is composed, with the result that the word is more than the sum of
its parts.

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: