Source: EURLEX
Language: en
Format: md

3.4.2004 EN Official Journal of the European Union C 85/3

—
by failing to adopt legislation ensuring the free movement
of foodstuffs for daily consumption and foodstuffs intended for particular nutritional uses, which are lawfully
manufactured and/or marketed in other Member States
but contain additives (such as vitamins, minerals and
other ingredients) not provided for under French legislation;

—
by failing to provide for a simplified procedure for having
a substance included on the national list of authorised
additives, which is necessary if the above foodstuffs are
to be marketed in France;

—
by hindering the marketing in France of the above
foodstuffs without establishing that their marketing poses
a risk to public health,

the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges; J. Mischo, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:

1. _Declares that, by failing to provide for a simplified procedure_
_for having included on the national list of authorised nutrients_
_those added to foodstuffs for daily consumption and foodstuffs_
_intended for particular nutritional uses which are lawfully_
_manufactured and/or marketed in other Member States,_

_and_

_by hindering the marketing in France of certain foodstuffs, such_
_as food supplements and dietary products containing the_
_substances L-tartrate and L-carnitine, and confectionery and_
_drinks to which certain nutrients have been added, without_
_establishing that the marketing of such foodstuffs entails a real_
_risk for public health,_

_the French Republic has failed to fulfil its obligations under_
_Article 30 of the EC Treaty (now, after amendment, Article 28_
_EC);_

2. _Dismisses the remainder of the application; Orders the Com-_
_mission of the European Communities and the French Republic_
_to pay their own costs._

( [1] ) OJ C 149 of 27.5.2000.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 12 February 2004**

**in Case C-265/00 (Reference for a preliminary ruling from**
**the Cour de justice Benelux): Campina Melkunie BV v**
**Benelux-Merkenbureau** ( [1] )

_**(Approximation of laws — Trade marks — Directive 89/**_
_**104/EEC — Article 3(1) — Ground for refusal to register**_
_**— Neologism composed of elements each of which is**_
_**descriptive of characteristics of the goods or services con-**_
_**cerned)**_

(2004/C 85/03)

_(Language of the case: Dutch)_

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

In Case C-265/00: Reference to the Court under Article 234
EC by the Benelux-Gerechtshof for a preliminary ruling in the
proceedings pending before that court between Campina
Melkunie BV and Benelux-Merkenbureau, on the interpretation
of Articles 2 and 3(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
(Sixth Chamber), composed of: V. Skouris, acting for the
President of the Sixth Chamber, C. Gulmann, J. N. Cunha
Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 12 February 2004,
in which it has ruled:

_Article 3(1)(c) 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 trade mark_
_consisting of a neologism composed of elements, each of which is_
_descriptive of characteristics of the goods or services in respect of_
_which registration is sought, is itself descriptive of the characteristics_
_of those goods or services for the purposes of that provision, unless_
_there is a perceptible difference between the neologism and the mere_
_sum of its parts: that assumes that, because of the unusual nature of_
_the combination in relation to the goods or services, the word creates_
_an impression which is sufficiently far removed from that produced_
_by the mere combination of meanings lent by the elements of which_
_it is composed, with the result that the word is more than the sum of_
_its parts._

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: