Order of the Court (Second Chamber) of 5 February 2004 in Case C-357/02 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): Fazenda Pública v SONAE Distribuição SGPS SA
Date: 2004-04-17
Institutions: Court of Justice
Subjects: company with share capital, financial transaction, interpretation of the law, securities, tax system

C 94/14

EN

Official Journal of the European Union

17.4.2004

ORDER OF THE COURT

(Third Chamber)

27 January 2004

the genuineness of use during the relevant period, account
being taken, where appropriate, of any circumstances subse-
quent to that filing. It is for the national court to determine
whether such circumstances confirm that the use of the
mark during the relevant period was genuine or whether,
they reflect an intention on the part of the
conversely,
proprietor to defeat that claim.

(1) OJ C 219 of 14.09.2002.

in Case C-259/02 (Reference for a preliminary ruling by
the High Court of Justice of England and Wales, Chancery
Division): La Mer Technology Inc. v Laboratoires Goemar
SA, (1)

(Article 104(3) of the Rules of Procedure — Trade marks
— Directive 89/104/EEC — Articles 10(1) and 12(1) —
Revocation of a trade mark — Notion of genuine use of a
trade mark)

(2004/C 94/27)

(Language of the case: English)

In Case C-259/02: Reference to the Court under Article 234 EC
by the High Court of Justice of England and Wales, Chancery
Division for a preliminary ruling in the proceedings pending
before that court between La Mer Technology Inc. and Labora-
toires Goemar SA, on the interpretation of Articles 10(1) and
12(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 (Third Chamber),
composed of: J.N. Cunha Rodrigues, acting as President of the
Third Chamber, J.-P. Puissochet (Rapporteur) and F. Macken,
Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass,
Registrar, has made an order on 27 January 2004, the opera-
tive part of which is as follows:

1. Articles 10(1)

and 12(1) of

First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws
of the Member States relating to trade marks must be inter-
preted as meaning that there is ‘genuine use’ of a trade mark
where it is used in accordance with its essential function,
which is to guarantee the identity of the origin of the goods
or services for which it is registered, in order to create or
preserve an outlet for those goods or services; genuine use
does not include token use for the sole purpose of preser-
ving the rights conferred by that mark. When assessing
whether use of the trade mark is genuine, regard must be
had to all the facts and circumstances relevant to estab-
lishing whether the commercial use of the mark is real in
the course of trade, particularly whether such use is viewed
as warranted in the economic sector concerned to maintain
or create a share in the market for the goods or services
protected by the mark,
those goods or
services, the characteristics of the market and the scale and
the mark. When it serves a real
frequency of use of
commercial purpose, in the circumstances cited above, even
minimal use of the mark or use by only a single importer in
the Member State concerned can be sufficient to establish
genuine use within the meaning of the Directive.

the nature of

2. While First Directive 89/104 makes the classification of use
of the trade mark as ‘genuine use’ consequential only on
consideration of the circumstances which pertain in respect
of the relevant period and which predate the filing of the
application for revocation, it does not preclude, in assessing

ORDER OF THE COURT

(Second Chamber)

of 5 February 2004

in Case C-357/02 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Fazenda Pública v
SONAE Distribuição SGPS SA (1)

(Article 104(3) of the Rules of Procedure — Directive
69/335/EEC — Indirect taxes on the raising of capital —
Tax on over-the-counter share transfers)

(2004/C 94/28)

(Language of the case: Portuguese)

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

In Case C-357/02: reference to the Court under Article 234 EC
by the Supremo Tribunal Administrativo (Supreme Administra-
tive Court) (Portugal) in the proceedings pending before that
court between Fazenda Pública and SONAE Distribuição SGPS
SA for a preliminary ruling on the interpretation of Articles 11
and 12 of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital (OJ, English
Special Edition 1969 (II), p. 412), as amended by Council
Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156,
p. 23) the Court (Second Chamber), composed of: V. Skouris,
acting for the President of the Second Chamber, R. Schintgen
Judges; A.Tizzano, Advocate
(Rapporteur) and N. Colneric,
General; R. Grass, Registrar made an order on 5 February
2004, the operative part of which is as follows:

Articles 11 and 12 of Council Directive 69/335/EEC of 17 July
1969 concerning indirect taxes on the raising of capital, as
amended by Council Directive 85/303/EEC of 10 June 1985,
must be interpreted as meaning that they do not preclude the
imposition of a tax on over-the-counter share transfers where
the amount of the tax increases directly, and without an upper
limit, in proportion to the amount of the underlying transac-
tion.

(1) OJ C 289 of 23 November 2002