Source: EURLEX
Language: en
Format: md

C 219/4 EN Official Journal of the European Communities 14.9.2002

2. Is it of importance as regards the acceptability of discon- (b) If the answer to Question 3(a) is affirmative:
tinuing the procedure that the content of the invitation
to tender is defective because of the incorrectness of the How is the said reference in the third sentence of
Article 16(1) of the TRIPS Agreement to existing
assessment previously made by the contractingauthority?
prior rights to be interpreted in the case of a trade
name which is not registered or established in the
( [1] ) OJ L 199, p. 1. State in which the trade mark is registered and in
which protection is sought for the trade mark
against the trade name in question, having regard to
the obligation under Article 8 of the Paris Convention to afford protection to a trade name regardless
of whether it is registered and to the fact that the
permanent appellate body of the WTO has regarded
the reference in Article 2(1) of the TRIPS Agreement
to Article 8 of the Paris Convention as meaning
**Reference for a preliminary ruling by the korkein oikeus**
that WTO members are obliged under the TRIPS
**by order of that Court of 3 July 2002 in the case**
Agreement to protect trade names in accordance
**of Anheuser-Busch, Incorporated against Budéjovicky´**
with the latter article? When assessing, in such a
**Budvar, národní podnik**
case, whether a trade name has a legal basis prior to
a trade mark for the purposes of the third sentence
**(Case C-245/02)** of Article 16(1) of the TRIPS Agreement, may it thus
be considered as decisive:

(2002/C 219/07) (i) whether the trade name was well-known at
least to some extent among the relevant trade
circles, in the State in which the trade mark is
registered and in which protection is sought
Reference has been made to the Court of Justice of the for it, before the point in time at which
European Communities by order of the korkein oikeus registration of the trade mark was applied for
(Supreme Court) of 3 July 2002, received at the Court Registry in the State in question; or
on 5 July 2002, for a preliminary ruling in the case of
Anheuser-Busch, Incorporated against Budéjovicky´ Budvar, (ii) whether the trade name was used in commerce
národní podnik on the following questions: directed to the State in which the trade mark is
registered and in which protection is sought
1. If the collision of a trade mark and a sign alleged to for it before the point in time at which
infringe it is situated at a point in time before the entry registration of the trade mark was applied for
into force of the TRIPS Agreement, do the provisions of in the State in question; or
the TRIPS Agreement apply to the question of which
right has the earlier legal basis, when the alleged infringe- (iii) what other factor may decide whether the trade
ment of the trade mark is said to continue after the date name is to be regarded as an existing prior
on which the TRIPS Agreement entered into force in the right within the meaning of the third sentence
Community and the Member States? of Article 16(1) of the TRIPS Agreement?

2. If the answer to Question 1 is affirmative:

(a) Can the trade name of an undertaking also act as a
sign for goods or services within the meaning of
the first sentence of Article 16(1) of the TRIPS
Agreement?
**Action brought on 9 July 2002 by Portuguese Republic**
**against Commission of the European Communities**
(b) If the answer to Question 2(a) is affirmative, on
what conditions may a trade name be regarded as a
sign for goods or services within the meaning of **(Case C-249/02)**
the first sentence of Article 16(1) of the TRIPS
Agreement?
(2002/C 219/08)

3. If the answer to Question 2(a) is affirmative:

(a) How is the reference in the third sentence of Article An action against the Commission of the European Communi16(1) of the TRIPS Agreement to existing prior ties was brought before the Court of Justice of the European
rights to be interpreted? May the right to a trade Communities on 9 July 2002 by the Portuguese Republic,
name also be regarded as an existing prior right represented by Luis Fernandes, acting as Agent, and Carlos
within the meaning of the third sentence of Article Botelho Moniz and Eduardo Maia Cadete, lawyers, with an
16(1) of the TRIPS Agreement? address for service in Luxembourg.