Source: EURLEX
Language: en
Format: md

5.1.2002 EN Official Journal of the European Communities C 3/9

3. _Articles 44(3) and 58(1) of the above Agreement with the_ **JUDGMENT OF THE COURT**
_Republic of Poland, read together, and Articles 45(3) and 59(1)_
_of the above Agreement with the Czech Republic, read together,_
_do not in principle preclude a system of prior control which_
**of 20 September 2001**
_makes the issue by the competent immigration authorities of_
_leave to enter and remain subject to the condition that the_
_applicant must show that he genuinely intends to take up an_
_activity as a self-employed person without at the same time_ **in Case C-383/99 P: Procter & Gamble Company v Office,**
_entering into employment or having recourse to public funds,_ **for Harmonisation in the Internal Market (Trade Marks**
_and that he possesses, from the outset, sufficient financial_ **and Designs) (OHIM)** ( [1] )
_resources for carrying out the activity in question as a self-_
_employed person and has reasonable chances of success._
_**(Appeal — Admissibility — Community trade mark —**_
_Substantive requirements such as those set out in section 4.2.3_ _**Regulation (EC) No 40/94 — Absolute ground for refusal**_
_of Chapter B 12 of the Netherlands Vreemdelingencirculaire_ _**to register — Distinctive character — Marks consisting**_
_(Circular on Aliens), in particular the requirement that Polish_ _**exclusively of descriptive signs or indications — ‘BABY-**_
_and Czech nationals wishing to become established in the host_ _**DRY’)**_
_Member State must from the outset have sufficient financial_
_resources to carry on the activity in question in a self-employed_
_capacity, are designed precisely to enable the competent auth-_
(2002/C 3/12)
_orities of that State to carry out such checks and are appropriate_
_for ensuring that such an objective is attained._

_(Language of the case: French)_
4. _Article 44(4)(a)(i) of the above Agreement with the Republic_
_of Poland and Article 45(4)(a)(i) of the above Agreement with_
_the Czech Republic must be construed to the effect that the_
_(Provisional translation; the definitive translation will be published_
_‘economic activities as self-employed persons’ referred to in those_
_in the European Court Reports)_
_provisions have the same meaning and scope as the ‘activities_
_as self-employed persons’ referred to in Article 52 of the EC_
_Treaty (now, after amendment, Article 43 EC)._

_The activity of prostitution pursued in a self-employed capacity_
_can be regarded as a service provided for remuneration and is_
In Case C-383/99P: Procter and Gamble Company established
_therefore covered by both those expressions._
in Cincinnatti (United States) represented by T. van Innis,
avocat, appeal against the judgment of the Court of First
5. _Article 44 of the above Agreement with the Republic of Poland_ Instance of the European Communities (Second Chamber) of
8 July 1999 in Case T-163/98 Procter & Gamble v OHIM
_and Article 45 of the above Agreement with the Czech Republic_
(‘BABY-DRY’) [1999] ECR II-2383, seeking to have that
_must be construed to the effect that prostitution is an economic_
judgment set aside in so far as the Court of First Instance ruled
_activity pursued by a self-employed person as referred to in those_
that the First Board of Appeal of the Office for Harmonisation
_provisions, where it is established that it is being carried on by_
in the Internal Market (Trade Marks and Designs) had not
_the person providing the service:_
infringed Article 7(1)(c) of Council Regulation (EC) No 40/94
of 20 December 1993 on the Community trade mark (OJ

—
_outside any relationship of subordination concerning the_ 1994 L 11, p. 1) in adopting its decision of 31 July 1998 (Case
_choice of that activity, working conditions and conditions_ R 35/1998-1), the other party to the proceedings being the
_of remuneration;_ Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (Agents: O. Montalto and E. Joly) — the Court,
— composed of: G.C. Rodrı´guez Iglesias, President, C. Gulmann,
_under that person’s own responsibility; and_
M. Wathelet and V. Skouris (Presidents of Chambers),
J.-P. Puissochet (Rapporteur), P. Jann, L. Sevo´n, R. Schintgen,
— _in return for remuneration paid to that person directly_ F. Macken, N. Colneric and S. von Bahr, Judges, F.G. Jacobs,
_and in full._ Advocate General; D. Louterman-Hubeau for the Registrar,
gave a judgment on 20 September 2001, in which it:
_It is for the national court to determine in each case, in the light_
_of the evidence adduced before it, whether those conditions are_
_satisfied._ 1. _Annuls the judgment of the Court of First Instance of 8 July_
_1999 in Case T-163/98 Procter & Gamble v OHIM (‘BABY-_
_DRY’), in so far as it found that the First Board of Appeal of_
_the Office for Harmonisation in the Internal Market (Trade_
( [1] ) OJ C 265 of 18.9.1999.
_Marks and Designs) did not infringe Article 7(1)(c) of Council_
_Regulation (EC) No 40/94 of 20 December 1993 on the_
_Community trade mark in adopting its decision of 31 July_
_1998 (Case R 35/1998-1);_

C 3/10 EN Official Journal of the European Communities 5.1.2002

2. _Annuls the decision of the First Board of Appeal of the Office_ the European Economic Area of 2 May 1992 (OJ 1994 L 1,
_for Harmonisation in the Internal market (Trade Marks and_ p. 3) — the Court, composed of: G.C. Rodrı´guez Iglesias,
_Designs) of 31 July 1998 (Case R 35/1998-1) in so far as it_ President, P. Jann, N. Colneric and S. von Bahr (Presidents of
_refused the application for registration of ‘BABY-DRY’ as a_ Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, A. La
_trade mark on the basis of Article 7(1)(c) of Regulation_ Pergola, J.-P. Puissochet, L. Sevo´n, V. Skouris and C.W.A. Tim_No 40/94;_ mermans, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on
20 November 2001, in which it has ruled:
3. _Orders the Office for Harmonisation in the Internal Market_
_(Trade Marks and Designs) to pay the costs both at first_
_instance and on appeal._

1. _On a proper construction of Article 7(1) of First Council_
_Directive 89/104/EEC of 21 December 1988 to approximate_
( [1] ) OJ C 6 of 8.1.2000.
_the laws of the Member States relating to trade marks, as_
_amended by the Agreement on the European Economic Area of_
_2 May 1992, the consent of a trade mark proprietor to the_
_marketing within the European Economic Area of products_
_bearing that mark which have previously been placed on the_
_market outside the European Economic Area by that proprietor_
_or with his consent may be implied, where it follows from facts_
_and circumstances prior to, simultaneous with or subsequent to_
_the placing of the goods on the market outside the European_
**JUDGMENT OF THE COURT**
_Economic Area which, in the view of the national court,_
_unequivocally demonstrate that the proprietor has renounced_
**of 20 November 2001** _his right to oppose placing of the goods on the market within_
_the European Economic Area._

**in Joined Cases C-414/99 to C-416/99 [reference for a**
**preliminary ruling from the High Court of Justice of**
**England and Wales, Chancery Division (Patent Court)]:** 2. _Implied consent cannot be inferred:_
**Zino Davidoff SA and A & G Imports Ltd (C-414/99),**
**between Levi Strauss & Co., Levi Strauss (UK) Ltd and**
**Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi** — _from the fact that the proprietor of the trade mark has not_
**Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale**
_communicated to all subsequent purchasers of the goods_
**UK Ltd** ( [1] ) _placed on the market outside the European Economic_
_Area his opposition to marketing within the European_
_Economic Area;_
_**(Trade marks — Directive 89/104/EEC — Article 7(1) —**_
_**Exhaustion of the rights conferred by a trade mark — Goods**_
_**placed on the market outside the EEA — Imported into the**_

—
_**EEA — Consent of the trade mark proprietor — Whether**_ _from the fact that the goods carry no warning of a_
_**consent required to be express or implied — Law governing**_ _prohibition of their being placed on the market within the_
_**the contract Presumption of consent — Non-applicability)**_ _European Economic Area;_

(2002/C 3/13)

—
_from the fact that the trade mark proprietor has transferred_
_the ownership of the products bearing the trade mark_
_(Language of the case: English)_
_without imposing any contractual reservations and that,_
_according to the law governing the contract, the property_
_right transferred includes, in the absence of such reser-_
_vations, an unlimited right of resale or, at the very least,_
In Joined Cases C-414/99 to C-416/99 (reference to the Court _a right to market the goods subsequently within the_
under Article 234 EC) from the High Court of Justice of _European Economic Area._
England and Wales, Chancery Division (Patent Court) (United
Kingdom of Great Britain and Northern Ireland) for a preliminary ruling in the proceedings pending before that court 3. _With regard to exhaustion of the trade mark proprietor’s_
between Zino Davidoff SA and A & G Imports Ltd (C-414/99),
_exclusive right, it is not relevant:_
between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco
Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss &
Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd, formerly

—
Costco UK Ltd (C-410/99) — on the interpretation of Article 7 _that the importer of goods bearing the trade mark is not_
of First Council Directive 89/104/EEC of 21 December 1988 _aware that the proprietor objects to their being placed on_
to approximate the laws of the Member States relating to trade _the market in the European Economic Area or sold there_
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on _by traders other than authorised retailers, or_