Source: EURLEX
Language: en
Format: md

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| 22.5.2010 | EN | Official Journal of the European Union | C 134/23 |

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 4 March 2010 — Frisdranken Industrie Winters BV v Red Bull GmbH

(Case C-119/10)

2010/C 134/35

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Frisdranken Industrie Winters BV

Defendant: Red Bull GmbH

Questions referred

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| 1. | |  |  | | --- | --- | | (a) | Is the mere ‘filling’ of packaging which bears a sign (as referred to in paragraph 3.1 (iv) above) to be regarded as using that sign in the course of trade within the meaning of Article 5 of the Trade Mark Directive,[(1)](#ntr1-C_2010134EN.01002301-E0001) even if that filling takes place as a service provided to and on the instructions of another person, for the purposes of distinguishing that person’s goods? |  |  |  | | --- | --- | | (b) | Does it make any difference to the answer to question 1.a if there is an infringement for the purposes of Article 5(1)(a) or (b)? | |

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| 2. | If the answer to question 1.a is in the affirmative, can using the sign then also be prohibited in the Benelux on the basis of Article 5 of the Trade Mark Directive if the goods bearing the sign are destined exclusively for export to countries outside (a) the Benelux area or (b) the European Union, and they cannot — except in the undertaking where the filling took place — be seen therein by the public? |

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| 3. | If the answer to question II (a or b) is in the affirmative, what criterion must be used when answering the question whether there has been trade-mark infringement: should the criterion be the perception of an average consumer who is reasonably well-informed and reasonably observant and circumspect in the Benelux or alternatively in the European Union — who then in the given circumstances can only be determined in a fictional or abstract way — or must a different criterion be used in this case, for example, the perception of the consumer in the country to which the goods are exported? |

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