Source: EURLEX
Language: en
Format: md

13.12.2003 EN Official Journal of the European Union C 304/5

—
_Article 41(1) precludes the introduction into the national_
_legislation of a Member State of a requirement of a work permit_
_in order for an undertaking established in Turkey to provide_
_services in the territory of that State, if such a permit was not_
_already required at the time of the entry into force of the_
_Additional Protocol;_

—
_it is for the national court to determine whether the national_
_legislation applied to Turkish nationals such as the applicants_
_in the main proceedings is less favourable than that applicable_
_at the time of the entry into force of the Additional Protocol._

( [1] ) OJ C 303 of 27.10.2001, OJ C 348 of 08.12.2001.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 23 October 2003**

**in Case C-408/01 (Reference for a preliminary ruling from**
**the Hoge Raad der Nederlanden): Adidas-Salomon AG,**
**formerly Adidas AG, Adidas Benelux BV v Fitnessworld**
**Trading Ltd** ( [1] )

_**(Directive 89/104/EEC — Article 5(2) — Trade marks with**_
_**a reputation — Protection against use of a sign in relation**_
_**to identical or similar goods or services — Degree of**_
_**similarity between the mark and the sign — Effect on the**_
_**public — Sign viewed as an embellishment)**_

(2003/C 304/07)

_(Language of the case: Dutch)_

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

In Case C-408/01: 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 Adidas-Salomon AG, formerly Adidas AG,
Adidas Benelux BV and Fitnessworld Trading Ltd, on the
interpretation of Article 5(2) of First Council Directive 89/
104/EEC of 21 December 1988 approximating the laws of the
Member States relating to trade marks (OJ 1989 L 40, p. 1),
the Court (Sixth Chamber), composed of: J.-P. Puissochet,
President of the Chamber, C. Gulmann (Rapporteur), F. Macken, N. Colneric and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, has given a judgment on 23 October 2003, in
which it has ruled:

1. _A Member State, where it exercises the option provided_
_by Article 5(2) of First Council Directive 89/104/EEC of_
_21 December 1988 to approximate the laws of the Member_
_States relating to trade marks, is bound to grant the specific_
_protection in question in cases of use by a third party of a later_
_mark or sign which is identical with or similar to the registered_
_mark with a reputation, both in relation to goods or services_
_which are not similar and in relation to goods or services which_
_are identical with or similar to those covered by that mark._

2. _The protection conferred by Article 5(2) of Directive 89/104 is_
_not conditional on a finding of a degree of similarity between_
_the mark with a reputation and the sign such that there exists_
_a likelihood of confusion between them on the part of the_
_relevant section of the public. It is sufficient for the degree of_
_similarity between the mark with a reputation and the sign to_
_have the effect that the relevant section of the public establishes_
_a link between the sign and the mark._

3. _The fact that a sign is viewed as an embellishment by the_
_relevant section of the public is not, in itself, an obstacle to the_
_protection conferred by Article 5(2) of Directive 89/104 where_
_the degree of similarity is none the less such that the relevant_
_section of the public establishes a link between the sign and the_
_mark. By contrast, where, according to a finding of fact by the_
_national court, the relevant section of the public views the sign_
_purely as an embellishment, it necessarily does not establish any_
_link with a registered mark, with the result that one of the_
_conditions of the protection conferred by Article 5(2) of_
_Directive 89/104 is then not satisfied._

( [1] ) OJ C 3 of 5.1.2002.