Case C-145/05: Judgment of the Court (Third Chamber) of  27 April 2006  (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Levi Strauss & Co. v Casucci SpA (Trade marks — Directive 89/104/EEC — Article 5(1)(b) — Relevant time for assessing likelihood of confusion between a trade mark and a similar sign — Loss of distinctive character owing to conduct of the proprietor of the trade mark after use of the sign has commenced)
Date: 2006-06-17
Institutions: Court of Justice
Subjects: Belgium, clothing, clothing industry, interpretation of the law, trade-mark law

17.6.2006

EN

Official Journal of the European Union

C 143/19

Judgment of the Court (First Chamber) of 6 April 2006
(reference for a preliminary ruling from the Gerechtshof
te 's-Gravenhage) — Federatie Nederlandse Vakbeweging v
Staat der Nederlanden

tive, which are not taken in the course of a given year, to be replaced
by an allowance in lieu in the course of a subsequent year.

(Case C-124/05) (1)

(1) OJ C 155, 25.6.2005.

(Social policy — Protection of the safety and health of
workers — Directive 93/104/EC — Right to paid annual
leave — Financial compensation for not taking the minimum
period of paid annual leave)

(2006/C 143/33)

Judgment of the Court (Third Chamber) of 27 April 2006
(reference for a preliminary ruling from the Cour de cassa-
tion (Belgium)) — Levi Strauss & Co. v Casucci SpA

Language of the case: Dutch

(Case C-145/05) (1)

Referring court

Gerechtshof te 's-Gravenhage

Parties to the main proceedings

Applicant: Federatie Nederlandse Vakbeweging (FNV)

Defendant: Staat der Nederlanden

Re:

Preliminary ruling — Gerechtshof te 's-Gravenhage — Interpre-
tation of Article 7(2) of Council Directive 93/104/EC of 23
November 1993 concerning certain aspects of the organisation
of working time (OJ 1993 L 307, p. 18) — Compatibility with
a national provision under which it is possible to agree in
writing, over the duration of a contract of employment, to
grant financial compensation in the following year in respect of
minimum annual leave which has not been used up

(Trade marks — Directive 89/104/EEC — Article 5(1)(b) —
Relevant time for assessing likelihood of confusion between a
trade mark and a similar sign — Loss of distinctive character
owing to conduct of the proprietor of the trade mark after
use of the sign has commenced)

(2006/C 143/34)

Language of the case: French

Referring court

Cour de cassation (Belgium)

Parties to the main proceedings

Applicant: Levi Strauss & Co.

Defendant: Casucci SpA

Re:

Operative part of the judgment

Article 7 of Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organisation of working time, as
amended by Directive 2000/34/EC of the European Parliament and
of the Council of 22 June 2000, must be interpreted as precluding a
national provision which, during a contract of employment, permits
days of annual leave, within the meaning of Article 7(1) of the direc-

Reference for a preliminary ruling — Cour de cassation
(Belgium) — Interpretation of Article 5(1) of Directive
89/104/EEC: First Council Directive of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1) — Relevant time for appreciation
of the likelihood of confusion between a trade mark and a
similar sign — Loss of distinctiveness as a result of the trade
mark owner's conduct after use of the sign began

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)