Source: EURLEX
Language: en
Format: md

C 135/2 EN Official Journal of the European Union 7.6.2003

8. _Dismisses the remainder of the application;_

9. _Orders the parties to bear their own costs._

( [1] ) OJ C 246 of 28.08.1999.

**JUDGMENT OF THE COURT**

**of 8 April 2003**

**in Case C-244/00 (Reference for a preliminary ruling from**
**the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle**
**sports + sportswear Handelsgesellschaft mbH, Michael**
**Orth** ( [1] )

_**(Trade marks — Directive 89/104/EEC — Article 7(1) —**_
_**Exhaustion of the right conferred by the trade mark —**_
_**Evidence — Place where the goods are first placed on the**_
_**market by the trade mark proprietor or with his consent —**_
_**Consent of the trade mark proprietor to placing on the**_
_**market in the EEA)**_

(2003/C 135/02)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-244/00: Reference to the Court under Article 177
of the EC Treaty (now Article 234EC) by theBundesgerichtshof
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and
of Article 7(2) 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), as amended
by the Agreement on the European Economic Area of
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 8 April 2003, in which it has ruled:

_A rule of evidence according to which exhaustion of the trade mark_
_right constitutes a plea in defence for a third party against whom the_
_trade mark proprietor brings an action, so that the existence of the_
_conditions for such exhaustion must, as a rule, be proved by the third_
_party who relies on it, is consistent with Community law and, in_
_particular, with Articles 5 and 7 of First Council Directive 89/104/_
_EEC of 21 December 1988 to approximate the laws of the Member_

_States relating to trade marks, as amended by the Agreement on the_
_European Economic Areaof 2 May 1992. However, the requirements_
_deriving from the protection of the free movement of goods enshrined,_
_inter alia, in Articles 28 EC and 30 EC may mean that this rule of_
_evidence needs to be qualified. Accordingly, where a third party_
_succeeds in establishing that there is a real risk of partitioning of_
_national markets if he himself bears that burden of proof, particularly_
_where the trade mark proprietor markets his products in the European_
_Economic Area using an exclusive distribution system, it is for the_
_proprietor of the trade mark to establish that the products were_
_initially placed on the market outside the European Economic Area_
_by him or with his consent. If such evidence is adduced, it is for the_
_third party to prove the consent of the trade mark proprietor to_
_subsequent marketing of the products in the European Economic_
_Area._

( [1] ) OJ C 247 of 26.8.2000.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 10 April 2003**

**in Case C-305/00 (Reference for a preliminary ruling**
**from the Oberlandesgericht Frankfurt am Main): Christian**
**Schulin** **v** **Saatgut-Treuhandverwaltungsgesellschaft**
**mbH** ( [1] )

_**(Plant varieties — System of protection — Article 14(3) of**_
_**Regulation (EC) No 2100/94 and Article 8 of Regulation**_
_**(EC) No 1768/95 — Use by farmers of the product of the**_
_**harvest — Obligation to provide information to the holder**_
_**of the Community right)**_

(2003/C 135/03)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-305/00: Reference to the Court under Article 234
EC by the Oberlandesgericht Frankfurt am Main (Germany) for
a preliminary ruling in the proceedings pending before that
court between Christian Schulin and Saatgut-Treuhandverwaltungsgesellschaft mbH, on the interpretation of the sixth
indent of Article 14(3) of Council Regulation (EC) No 2100/
94 of 27 July 1994 on Community plant variety rights (OJ
1994 L 227, p. 1), and Article 8 of Commission Regulation
(EC) No 1768/95 of 24 July 1995 implementing rules on
the agricultural exemption provided for in Article 14(3) of
Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
(Fifth Chamber), composed of: M. Wathelet, President of the
Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr

7.6.2003 EN Official Journal of the European Union C 135/3

(Rapporteur) and A. Rosas, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 10 April 2003, in which it
has ruled:

_The provisions of the sixth indent of Article 14(3) of Council_
_Regulation (EC) No 2100/94, of 27 July 1994, on Community_
_plant variety rights in conjunction with Article 8 of Commission_
_Regulation (EC) No 1768/95 of 24 July 1995 implementing rules_
_on the agricultural exemption provided for in Article 14(3) of_
_Regulation No 2100/94 cannot be construed as meaning that the_
_holder of a Community plant variety right can require a farmer to_
_provide the information specified in those provisions where there is no_
_indication that the farmer has used or will use, for propagating_
_purposes in the field, on his own holding, the product of the harvest_
_obtained by planting, on his own holding, propagating material of a_
_variety other than a hybrid or synthetic variety which is covered by_
_that right and belongs to one of the agricultural plant species listed_
_in Article 14(2) of Regulation No 2100/94._

( [1] ) OJ C 302 of 21.10.2000.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 10 April 2003**

**in Case C-437/00 (Reference for a preliminary ruling from**
**the Landesarbeitsgericht München): Giulia Pugliese v**
**Finmeccanica SpA, Alenia Aerospazio Division** ( [1] )

_**(Brussels Convention — Article 5(1) — Court for the place**_
_**of performance of the contractual obligation — Contract of**_
_**employment — Place where the employee habitually carries**_
_**out his work — First contract fixing the place of performance**_
_**of the work in one Contracting State — Second contract**_
_**concluded with reference to the first contract and under**_
_**which the employee carries out his work in another Con-**_
_**tracting State — First contract suspended during the per-**_
_**formance of the second)**_

(2003/C 135/04)

_(Language of the case: German)_

_(Provisional translation; the definitive translation will be published_
_in the European Court Reports)_

In Case C-437/00: Reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of

the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters by
the Landesarbeitsgericht München (Germany) for a preliminary
ruling in the proceedings pending before that court between
Giulia Pugliese and Finmeccanica SpA, Alenia Aerospazio
Division, on theinterpretation of Article 5(1) of the abovementioned Convention of 27 September 1968 (OJ 1978 L 304,
p. 36), as amended by the Convention of 9 October 1978 on
the Accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ
1978 L 304, p. 1 and — amended version — p. 77), by the
Convention of 25 October 1982 on the Accession of the
Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention
of 26 May 1989 on the Accession of the Kingdom of Spain
and the Portuguese Republic (OJ 1989 L 285, p. 1), the Court,
composed of: D.A.O. Edward acting as President of the Fifth
Chamber, A. La Pergola, P. Jann (Rapporteur), S. von Bahr and
A. Rosas, Judges; F.G. Jacobs, Advocate General; H.A. Rühl,
Principal Administrator, for theRegistrar, has given a judgment
on 10 April 2003, in which it has ruled:

1. _Article 5(1) of the Convention of 27 September 1968 on_
_Jurisdiction and the Enforcement of Judgments in Civil and_
_Commercial Matters, as amended by the Convention of 9 Octo-_
_ber 1978 on the Accession of the Kingdom of Denmark,_
_Ireland and the United Kingdom of Great Britain and Northern_
_Ireland, by the Convention of 25 October 1982 on the_
_Accession of the Hellenic Republic and by the Convention of_
_26 May 1989 on the Accession of the Kingdom of Spain and_
_the Portuguese Republic, must be interpreted as meaning that,_
_in a dispute between an employee and a first employer, the place_
_where the employee performs his obligations to a second_
_employer can be regarded as the place where he habitually_
_carries out his work when the first employer, with respect to_
_whom the employee’s contractual obligations are suspended,_
_has, at the time of the conclusion of the second contract of_
_employment, an interest in the performance of the service by the_
_employee to the second employer in a place decided on by the_
_latter. The existence of such an interest must be determined on_
_a comprehensive basis, taking into consideration all the_
_circumstances of the case._

2. _Article 5(1) of the Brussels Convention must be interpreted as_
_meaning that, in matters relating to contracts of employment,_
_the place where the employee carries out his work is the only_
_place of performance of an obligation which can be taken into_
_consideration in order to determine which court has jurisdiction._

( [1] ) OJ C 61 of 24.2.2001.