Source: EURLEX
Language: en
Format: md

C 85/4 EN Official Journal of the European Union 3.4.2004

_For the purposes of determining whether the ground for refusal set_
_out in Article 3(1)(c) of Directive 89/104 applies to such a mark, it_
_is irrelevant whether or not there are synonyms capable of designating_
_the same characteristics of the goods or services referred to in the_
_application for registration._

( [1] ) OJ C 233 of 12.8.2000.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 5 February 2004**

**in Case C-95/01 (Reference for a preliminary ruling from**
**the tribunal de grande instance de Paris): John Greenham**
**v Léonard Abel** ( [1] )

_**(Free movement of goods — Articles 28 EC and 30 EC —**_
_**Prohibition on marketing foodstuffs to which vitamins and**_
_**minerals have been added — Justification — Proportionality)**_

(2004/C 85/04)

_(Language of the case: French)_

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

In Case C-95/01: Reference to the Court under Article 234 EC
by the Tribunal de grande instance de Paris (France) for a
preliminary ruling in the criminal proceedings pending before
that court against John Greenham and Léonard Abel, on the
interpretation of Articles 28 EC and 30 EC, the Court (Sixth
Chamber), composed of: V. Skouris, acting for the President of
the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken
(Rapporteur) and N. Colneric, Judges; J. Mischo, Advocate
General; H. von Holstein, Deputy Registrar, has given a
judgment on 5 February 2004, in which it has ruled:

_Articles 28 EC and 30 EC must be interpreted as meaning that they_
_do not preclude a Member State from prohibiting the marketing_
_without prior authorisation of foodstuffs lawfully manufactured and_
_marketed in another Member State, where nutrients such as vitamins_
_or minerals have been added thereto other than those whose use has_
_been declared lawful in the first Member State, provided that certain_
_conditions are satisfied._

_First, the prior authorisation procedure must be readily accessible and_
_capable of being completed within a reasonable time and, if it leads_
_to a refusal, the decision of refusal must be open to challenge before_
_the courts. Secondly, refusal to authorise marketing must be based on_
_a detailed assessment of the risk to public health, based on the most_
_reliable scientific data available and the most recent results of_
_international research._

( [1] ) OJ C 108 of 7.4.2001.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 12 February 2004**

**in Case C-218/01 (Reference for a preliminary ruling from**
**the Bundespatentgericht (Germany): Henkel KGaA** ( [1] )

_**(Approximation of laws — Trade marks — Directive 89/**_
_**104/EEC — Article 3(1)(b), (c) and (e) — Grounds for**_
_**refusal to register — Three-dimensional shape-of-product**_
_**mark — Distinctive character**_

(2004/C 85/05)

_(Language of the case: German)_

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

In Case C-218/01: reference to the Court under Article 234
EC by the Bundespatentgericht (Germany) for a preliminary
ruling in the proceedings brought before that court by Henkel
KGaA, on the interpretation of Article 3(1)(b), (c) and (e) 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 (Sixth Chamber),
composed of C. Gulmann, acting for the President of the
Chamber, J. N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen
and F. Macken (Rapporteur), Judges; Advocate General:
D. Ruíz-Jarabo Colomer, Registrar: L. Hewlett, Principal
Administrator, has given a judgment on 12 February 2004, in
which it ruled:

3.4.2004 EN Official Journal of the European Union C 85/5

1. _For three-dimensional trade marks consisting of the packaging_
_of goods which are packaged in trade for reasons linked to the_
_very nature of the goods, the packaging thereof must be_
_assimilated to the shape of the goods, so that that packaging_
_may constitute the shape of the goods within the meaning of_
_Article 3(1)(e) of the First Council Directive 89/104/EEC of_
_21 December 1988 to approximate the laws of the Member_
_States relating to trade marks and may, where appropriate,_
_serve to designate characteristics of the packaged goods,_
_including their quality, within the meaning of Article 3(1)(c) of_
_that directive._

2. _For three-dimensional trade marks consisting of the packaging_
_of goods which are packaged in trade for reasons linked to the_
_very nature of the product, their distinctive character within the_
_meaning of Article 3(1)(b) of Directive 89/104 must be_
_assessed by reference to the perception of the average consumer_
_of such goods, who is reasonably well informed and reasonably_
_observant and circumspect. Such a trade mark must enable such_
_a consumer to distinguish the product concerned from those_
_of other undertakings without conducting an analytical or_
_comparative examination and without paying particular atten-_
_tion._

3. _The distinctive character of a trade mark within the meaning of_
_Article 3(1)(b) of Directive 89/104 may be assessed solely on_
_the basis of national trade usage, without any need for other_
_administrative investigations to be undertaken in order to_
_determine whether and to what extent identical trade marks_
_have been registered or have been refused registration in other_
_Member States of the European Union._

_The fact that an identical trade mark has been registered in one_
_Member State for identical goods or services may be taken into_
_consideration by the competent authority of another Member_
_State among all the circumstances which that authority must_
_take into account in assessing the distinctive character of a trade_
_mark, but it is not decisive regarding the latter’s decision to_
_grant or refuse registration of a trade mark._

_On the other hand, the fact that a trade mark has been_
_registered in one Member State for certain goods or services can_
_have no bearing on the examination by the competent trade_
_mark registration authority of another Member State of the_
_distinctive character of a similar trade mark for goods or services_
_similar to those for which the first trade mark was registered._

( [1] ) OJ C 227, 11.8.2001.

**JUDGMENT OF THE COURT**

**(Third Chamber)**

**of 12 February 2004**

**in Case C- 330/01 P: Hortiplant SAT v Commission of the**
**European Communities** ( [1] )

_**(Agriculture — EAGGF — Cancellation and request for**_
_**repayment of financial assistance — Regulation (EEC)**_
_**No 4253/88 — Article 24(1) and (2) — Obligation on the**_
_**Commission to request the Member State concerned to**_
_**submit observations before cancelling financial assistance)**_

(2004/C 85/06)

_(Language of the case: Spanish)_

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

In Case C-330/01 P, Hortiplant SAT established in Amposta
(Spain), represented by C. Fernández Vicién and I. MorenoTapia Rivas: APPEAL against the judgment of the Court of
First Instance of the European Communities (Fourth Chamber)
of 14 June 2001 in Case T-143/99 Hortiplant v Commission

[2001] ECR II-1665, seeking to have that judgment set aside,
the other party to the proceedings being: Commission of
the European Communities (Agents: L. Visaggio, assisted by
J. Guerra Fernández) with an address for service in Luxembourg, the Court (Third Chamber), composed of: J. N. Cunha
Rodrigues, acting for the President of the Third Chamber, J.P. Puissochet and F. Macken (Rapporteur), Judges; S. Alber,
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 12 February 2004, in which it:

1. _Dismisses the appeal;_

2. _Orders Hortiplant to pay the costs._

( [1] ) OJ C 303 of 27.10.2001.