Judgment of the Court (Second Chamber) of 7 July 2005 in Case C-353/03 (Reference for a preliminary ruling Court of Appeal): Société des produits Nestlé SA v Mars UK Ltd (Trade marks — Directive 89/104/EEC — Absence of distinctive character — Distinctive character acquired through use — Use as part of or in conjunction with a registered trade mark)
Date: 2005-09-17
Institutions: Court of Justice
Subjects: EU trade mark, interpretation of the law, trade-mark law

17.9.2005

EN

Official Journal of the European Union

C 229/3

JUDGMENT OF THE COURT

(Second Chamber)

of 7 July 2005

in Case C-353/03 (Reference for a preliminary ruling
Court of Appeal): Société des produits Nestlé SA v Mars
UK Ltd (1)

(Trade marks — Directive 89/104/EEC — Absence of
distinctive
acquired
through use — Use as part of or in conjunction with a regis-
tered trade mark)

character — Distinctive

character

(2005/C 229/05)

(Language of the case: English)

the Court on 18 August 2003,

In Case C-353/03, reference for a preliminary ruling under
Article 234 EC, by the Court of Appeal (England and Wales)
(Civil Division) (United Kingdom), made by Decision of 25 July
2003, received at
in the
proceedings between Société des produits Nestlé SA and
Mars UK Ltd, the Court: (Second Chamber) composed of C.
W. A. Timmermans, President of the Chamber, R. Silva de
Lapuerta, C. Gulmann (Rapporteur), P. Kūris and G. Arestis,
Judges;
J. Kokott, Advocate General, L. Hewlett, Principal
Administrator for the Registrar, gave a judgment on 7 July
2005, the operative part of which is as follows:

The distinctive character of a mark referred to in Article 3(3) of First
Council Directive 89/104/EEC of 21 December 1988 to approxi-
mate the laws of the Member States relating to trade marks may be
acquired in consequence of the use of that mark as part of or in
conjunction with a registered trade mark.

(1) OJ C 251 of 18.10.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 7 July 2005

in Case C-374/03 (Reference for a preliminary ruling
Verwaltungsgericht): Gaye Gürol v Bezirksregierung
Köln (1)

(EEC-Turkey Association Agreement — Article 9 of Decision
No 1/80 of the Association Council — Direct effect —
Access to education for children of a Turkish worker duly
registered as belonging to the workforce — Children living
with their parents — Education grant)

(2005/C 229/06)

(Language of the case: German)

In Case C-374/03, reference for a preliminary ruling under
from the Verwaltungsgericht Sigmaringen
Article 234 EC,

(Germany), made by decision of 31 July 2003, received at the
Court on 8 September 2003, in the proceedings Gaye Gürol
and Bezirksregierung Köln,
(First Chamber),
composed of P. Jann, President of the Chamber, K. Lenaerts,
J.N. Cunha Rodrigues (Rapporteur), E.
Ilešič,
Judges; L.A. Geelhoed, Advocate General, M.-F. Contet, Prin-
cipal Administrator, has given a judgment on 7 July 2005, the
operative part of which is as follows:

Juhász and M.

the Court

1. The first sentence of Article 9 of Decision No 1/80 of the Asso-
ciation Council of 19 September 1980 on the development of the
Association, adopted by the Association Council created under the
establishing an association between the European
agreement
Economic Community and Turkey, has direct effect in the Member
States.

2. The condition of residing with parents in accordance with the first
sentence of Article 9 is met in the case of a Turkish child who,
after residing legally with his parents in the host Member State,
establishes his main residence in the place in the same Member
State in which he follows his university studies, while declaring his
parents' home to be his secondary residence only.

3. The second sentence of Article 9 of Decision No 1/80 has direct
effect in the Member States. That provision guarantees Turkish
children a non-discriminatory right of access to education grants,
such as that provided for under the legislation at issue in the main
proceedings, that right being theirs even when they pursue higher
education studies in Turkey.

(1) OJ C 304 of 13.12.2003.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 7 July 2005

in Case C-214/04: Commission of the European Commu-
nities v Italian Republic (1)

(Failure by a Member State
to fulfil obligations —
Substances harmful to the ozone layer — Article 5(3) of
Regulation (EC) No 2037/2000 — Maintenance of deroga-
tions not provided for in the regulation)

(2005/C 229/07)

(Language of the case: Italian)

In Case C-214/04 Commission of the European Communities
(Agents: U. Wölker and A. Aresu) v Italian Republic (Agent:
I.M. Braguglia, assisted by G. Fiengo) — action under Article
226 EC for failure to fulfil obligations, brought on 19 May
2004 — the Court (Fifth Chamber), composed of R. Silva de