Source: EURLEX
Language: en
Format: md

10.5.2003 EN Official Journal of the European Union C 112/3

**JUDGMENT OF THE COURT**

**of 20 March 2003**

**in Case C-291/00 (Reference for a preliminary ruling from**
**the Tribunal de Grande Instance de Paris): LTJ Diffusion**
**SA v Sadas Vertbaudet SA** ( [1] )

_**(Trade marks — Approximation of laws — Directive 89/**_
_**104/EEC — Article 5(1)(a) — Notion of sign which is**_
_**identical with the trade mark — Use of the distinctive**_
_**element of the mark to the exclusion of other elements —**_
_**Use of all the elements making up the trade mark but with**_
_**the addition of other elements)**_

(2003/C 112/04)

_(Language of the case: French)_

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

In Case C-291/00: Reference to the Court under Article 234
EC by the Tribunal de grande instance de Paris (France) for a
preliminary ruling in the proceedings pending before that
court between LTJ Diffusion SA and Sadas Vertbaudet SA, on
the interpretation of Article 5(1)(a) 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), the Court, composed of: G. C. Rodríguez Iglesias,
President, M. Wathelet and R. Schintgen (Presidents of Chambers), C. Gulmann, P. Jann, F. Macken (Rapporteur), N. Colneric, S. von Bahr and J. N. Cunha Rodrigues, Judges; F. G. Jacobs,
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 20 March 2003, in
which it has ruled:

_Article 5(1)(a) of First Council Directive 89/104/EEC of 21 Decem-_
_ber 1988 to approximate the laws of the Member States relating to_
_trade marks must be interpreted as meaning that a sign is identical_
_with the trade mark where it reproduces, without any modification or_
_addition, all the elements constituting the trade mark or where,_
_viewed as a whole, it contains differences so insignificant that they_
_may go unnoticed by an average consumer._

( [1] ) OJ C 273 of 23.9.2000.

**JUDGMENT OF THE COURT**

**of 11 March 2003**

**in Case C-40/01 (Reference for a preliminary ruling from**
**the Hoge Raad der Nederlanden): Ansul BV v Ajax**
**Brandbeveiliging BV** ( [1] )

_**(Trade marks — Directive 89/104/EEC — Article 12(1) —**_
_**Revocation of trade mark owner’s rights — Concept of**_
_**genuine use of a trade mark — Maintenance of goods already**_
_**sold and sales of replacement parts and accessories)**_

(2003/C 112/05)

_(Language of the case: Dutch)_

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

In Case C-40/01: Reference to the Court under Article 234 EC
by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between Ansul BV and Ajax Brandbeveiliging BV, on the
interpretation of Article 12(1) 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), the Court, composed of: G. C. Rodríguez Iglesias,
President, J.-P. Puissochet (Rapporteur), M. Wathelet and
C. W. A. Timmermans, Presidents of Chamber, C. Gulmann,
A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric and
S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 11 March 2003, in which it has
ruled:

1. _Article 12(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 there is ‘genuine use’ of a trade mark where the mark is_
_used in accordance with its essential function, which is to_
_guarantee the identity of the origin of the goods or services for_
_which it is registered, in order to create or preserve an outlet for_
_those goods or services; genuine use does not include token use_
_for the sole purpose of preserving the rights conferred by the_
_mark. When assessing whether use of the trade mark is genuine,_
_regard must be had to all the facts and circumstances relevant_
_to establishing whether the commercial exploitation of the mark_
_is real, particularly whether such use is viewed as warranted in_
_the economic sector concerned to maintain or create a share in_
_the market for the goods or services protected by the mark, the_
_nature of the goods or services at issue, the characteristics of the_
_market and the scale and frequency of use of the mark. The fact_
_that a mark that is not used for goods newly available on the_
_market but for goods that were sold in the past does not mean_
_that its use is not genuine, if the proprietor makes actual use of_
_the same mark for component parts that are integral to the_