Judgment of the Court (Third Chamber) of 12 February 2004 in Case C- 330/01 P: Hortiplant SAT v Commission of the European Communities (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)
Date: 2004-04-03
Institutions: Court of Justice
Subjects: EAGGF, European Commission, action for annulment (EU), aid to agriculture, suspension of aid

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.