Case C-180/05: Judgment of the Court (Sixth Chamber) of  27 April 2006  — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 92/100/EEC — Rights related to copyright in the field of intellectual property — Public lending right — Failure to transpose within the period prescribed)
Date: 2006-06-17
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, application of EU law, copyright, intellectual property

C 143/20

EN

Official Journal of the European Union

17.6.2006

Operative part of the judgment

Defendant: Grand Duchy of Luxembourg (represented by: M. S.
Schreiner, Agent)

1. Article 5(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 interpreted as meaning that, in
order to determine the scope of protection of a trade mark which
has been lawfully acquired on the basis of its distinctive character,
the national court must take into account the perception of the
public concerned at the time when the sign, the use of which
infringes that trade mark, began to be used.

2. Where the competent national court finds that the sign in question
constituted an infringement of the mark at the time when the sign
began to be used, it is for that court to take such measures as
prove to be the most appropriate in the light of the circumstances
of the case in order to safeguard the proprietor's rights deriving
from Article 5(1) of Directive 89/104; such measures may
include, in particular, an order to cease use of that sign.

3. It is not appropriate to order cessation of the use of the sign in
question if it has been established that the trade mark has lost its
distinctive character,
in consequence of acts or inactivity of the
proprietor, so that it has become a common name within the
meaning of Article 12(2) of Directive 89/104, and the trade
mark has therefore been revoked.

Re:

Failure of a Member State to fulfil its obligations — Infringe-
ments of Articles 1 and 5 of Council Directive 92/100/EEC of
19 November 1992 on rental right and lending right and on
certain rights related to copyright in the field of intellectual
property (OJ 1992 L 346, p. 1)

Operative part of the judgment

The Court:

1. Declares that, by failing to apply the provisions on public lending
in Council Directive 92/100/EEC of 19
right provided for
November 1992 on rental right and lending right and on certain
rights related to copyright in the field of intellectual property, the
Grand Duchy of Luxembourg has failed to fulfil its obligations
under Articles 1 and 5 of that directive;

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 132, 28.5.2005.

(1) OJ C 171 of 9.7.2005

Judgment of the Court (Sixth Chamber) of 27 April 2006
— Commission of the European Communities v Grand
Duchy of Luxembourg

Order of the Court of 21 November 2005 — SNF SA v
Commission of the European Communities

(Case C-180/05) (1)

(Case C-482/04 P) (1)

(Failure of a Member State to fulfil its obligations — Direc-
tive 92/100/EEC — Rights related to copyright in the field of
intellectual property — Public lending right — Failure to
transpose within the period prescribed)

(2006/C 143/35)

Language of the case: French

Parties

(Appeal — Directive on cosmetic products — Restrictions on
the use of polyacrylamides in the composition of cosmetic
products)

(2006/C 143/36)

Language of the case: English

Parties

Applicant: SNF SA (represented by: K. Van Maldegem and C.
Mereu, lawyers)

Applicant: Commission of the European Communities (repre-
sented by: W. Wils, Agent)

Other party to the proceedings: Commission of the European
Communities (represented by: X. Lewis and A. Caeiros, acting
as Agents)