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 (Free movement of goods — Articles 28 EC and 30 EC — Prohibition on marketing foodstuffs to which vitamins and minerals have been added — Justification — Proportionality)
Date: 2004-04-03
Institutions: Court of Justice
Subjects: food supplement, foodstuff, free movement of goods, interpretation of the law, marketing

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: