Source: EURLEX
Language: en
Format: md

10.8.2002 EN Official Journal of the European Communities C 191/1

## I

_(Information)_

# COURT OF JUSTICE

**COURT OF JUSTICE**

**JUDGMENT OF THE COURT** D. Ruiz-Jarabo Colomer, Advocate General; D. LoutermanHubeau, Head of Division, for the Registrar, has given a
judgment on 18 June 2002, in which it has ruled:

**of 18 June 2002**

**in Case C-299/99 (Reference for a preliminary ruling from** 1. _There is no category of marks which is not excluded from_
**the Court of Appeal (England & Wales) (Civil Division):** _registration by Article 3(1)(b), (c) and (d) and Article 3(3) of_
**Koninklijke Philips Electronics NV v Remington Con-** _First Council Directive 89/104/EEC of 21 December 1988 to_
**sumer Products Ltd** ( [1] ) _approximate the laws of the Member States relating to trade_
_marks which is none the less excluded from registration by_
_Article 3(1)(a) thereof on the ground that such marks are_
_incapable of distinguishing the goods of the proprietor of the_
_**(Approximation of laws — Trade marks — Directive 89/**_ _mark from those of other undertakings._
_**104/EEC — Articles 3(1) and (3), 5(1) and 6(1)(b) — Signs**_
_**capable of being trade marks — Signs consisting exclusively**_
_**of the shape of the product)**_

2. _In order to be capable of distinguishing an article for the_
_purposes of Article 2 of the Directive, the shape of the article in_
(2002/C 191/01) _respect of which the sign is registered does not require any_
_capricious addition, such as an embellishment which has no_
_functional purpose._

_(Language of the case: English)_

3. _Where a trader has been the only supplier of particular goods_
_to the market, extensive use of a sign which consists of the_
_shape of those goods may be sufficient to give the sign a_
_distinctive character for the purposes of Article 3(3) of Directive_
In Case C-299/99: Reference to the Court under Article 234 _89/104 in circumstances where, as a result of that use, a_
EC by the Court of Appeal (England and Wales) (Civil Division) _substantial proportion of the relevant class of persons associates_
(United Kingdom) for a preliminary ruling in the proceedings _that shape with that trader and no other undertaking or believes_
pending before that court between Koninklijke Philips Elec- _that goods of that shape come from that trader. However, it is_
tronics NV and Remington Consumer Products Ltd, on the _for the national court to verify that the circumstances in which_
interpretation of Articles 3(1) and (3), 5(1) and 6(1)(b) of First _the requirement under that provision is satisfied are shown to_
Council Directive 89/104/EEC of 21 December 1988 to _exist on the basis of specific and reliable data, that the presumed_
approximate the laws of the Member States relating to trade _expectations of an average consumer of the category of goods or_
marks (OJ 1989 L 40, p. 1), the Court, composed of: _services in question, who is reasonably well-informed and_
G.C. Rodrı´guez Iglesias, President, P. Jann, F. Macken (Rappor- _reasonably observant and circumspect, are taken into account_
teur), N. Colneric and S. von Bahr (Presidents of Chambers), _and that the identification, by the relevant class of persons, of_
C. Gulmann, D.A.O. Edward, A. La Pergola, J.-P. Puissochet, _the product as originating from a given undertaking is as a_
J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges; _result of the use of the mark as a trade mark._

C 191/2 EN Official Journal of the European Communities 10.8.2002

4. _Article 3(1)(e), second indent, of Directive 89/104 must be_ milk and milk products sector (OJ 1992 L 405, p. 1), as
_interpreted to mean that a sign consisting exclusively of the_ amended by Council Regulation (EEC) No 1560/93 of 14 June
_shape of a product is unregistrable by virtue thereof if it is_ 1993 (OJ 1993 L 154, p. 30), the Court (Sixth Chamber),
_established that the essential functional features of that shape_ composed of: N. Colneric, President of the Second Chamber,
_are attributable only to the technical result. Moreover, the_ acting for the President of the Sixth Chamber, C. Gulmann and
_ground for refusal or invalidity of registration imposed by that_ V. Skouris (Rapporteur), Judges; L.A. Geelhoed, Advocate
_provision cannot be overcome by establishing that there are_ General; H.A. Rühl, Principal Administrator, for the Registrar,
_other shapes which allow the same technical result to be_ has given a judgment on 20 June 2002, in which it has ruled:
_obtained._

( [1] ) OJ C 299 of 16.10.1999. 1. _When Member States determine, pursuant to the first subpara-_
_graph of Article 7(1) of Council Regulation (EEC) No 3950/_
_92 of 28 December 1992 establishing an additional levy in_
_the milk and milk products sector, as amended by Council_
_Regulation (EEC) No 1506/93 of 14 June 1993, the detailed_
_rules under which the reference quantity attached to a holding_
_is to be transferred upon the sale or lease of the holding, they_
_may provide, pursuant to that provision, that part of the_
_reference quantity is not to be transferred with the holding to_
_the producer taking it over but is to be added to the national_
_reserve by means of a ‘clawback’ mechanism. Such a measure_
_must be adopted and applied:_

**JUDGMENT OF THE COURT**

—
_in a way which does not compromise the objectives of the_
**(Sixth Chamber)** _common agricultural policy and in particular those of the_
_common organisation of the markets in the milk sector;_

**of 20 June 2002**

—
_on the basis of objective criteria, and_

**in Case C-313/99 (Reference for a preliminary ruling from**
**the High Court): Gerard Mulligan, Tim O’Sullivan, Tom** — _in accordance with the general principles of Community_
**Power, Hugh Duncan v Minister for Agriculture and** _law such as, in particular, the principles of legal certainty_
**Food, Ireland, Attorney General** ( [1] ) _and protection of legitimate expectations, proportionality,_
_non-discrimination and respect for fundamental rights._

_**(Additional levy in the milk and milk products sector —**_
_**Regulation (EEC) No 3950/92 — Transfer of the reference**_ 2. _The principle of legal certainty does not preclude, as a general_
_**quantity on sale or lease of the holding — Whether a**_
_principle of Community law, a Member State from choosing,_
_**Member State may claw back part of the reference quantity**_
_for the purpose of adopting national measures pursuant to_
_**and add it to the national reserve)**_
_Article 7(1) of Regulation No 3950/92, a procedure whereby_
_a legislative instrument authorises the competent authority,_
_such as a minister, to adopt those measures by means of a_
(2002/C 191/02) _decision. That principle requires that the publicity for such_
_measures be of such a nature as to inform the natural or legal_
_persons concerned by the measures of their rights and obligations_
_under them. It is for the national court to determine, on the_
_(Language of the case: English)_
_basis of the facts before it, whether that is the case in the main_
_proceedings._

In Case C-313/99: Reference to the Court under Article 234
( [1] ) OJ C 299 of 16.10.1999.
EC by the High Court (Ireland) for a preliminary ruling in
the proceedings pending before that court between Gerard
Mulligan, Tim O’Sullivan, Tom Power, Hugh Duncan and
Minister for Agriculture and Food, Ireland, Attorney General,
on the interpretation of Council Regulation (EEC) No 3950/92
of 28 December 1992 establishing an additional levy in the