Source: EURLEX
Language: en
Format: md

C 135/2 EN Official Journal of the European Union 7.6.2003

8. _Dismisses the remainder of the application;_

9. _Orders the parties to bear their own costs._

( [1] ) OJ C 246 of 28.08.1999.

**JUDGMENT OF THE COURT**

**of 8 April 2003**

**in Case C-244/00 (Reference for a preliminary ruling from**
**the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle**
**sports + sportswear Handelsgesellschaft mbH, Michael**
**Orth** ( [1] )

_**(Trade marks — Directive 89/104/EEC — Article 7(1) —**_
_**Exhaustion of the right conferred by the trade mark —**_
_**Evidence — Place where the goods are first placed on the**_
_**market by the trade mark proprietor or with his consent —**_
_**Consent of the trade mark proprietor to placing on the**_
_**market in the EEA)**_

(2003/C 135/02)

_(Language of the case: German)_

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

In Case C-244/00: Reference to the Court under Article 177
of the EC Treaty (now Article 234EC) by theBundesgerichtshof
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and
of Article 7(2) 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), as amended
by the Agreement on the European Economic Area of
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 8 April 2003, in which it has ruled:

_A rule of evidence according to which exhaustion of the trade mark_
_right constitutes a plea in defence for a third party against whom the_
_trade mark proprietor brings an action, so that the existence of the_
_conditions for such exhaustion must, as a rule, be proved by the third_
_party who relies on it, is consistent with Community law and, in_
_particular, with Articles 5 and 7 of First Council Directive 89/104/_
_EEC of 21 December 1988 to approximate the laws of the Member_

_States relating to trade marks, as amended by the Agreement on the_
_European Economic Areaof 2 May 1992. However, the requirements_
_deriving from the protection of the free movement of goods enshrined,_
_inter alia, in Articles 28 EC and 30 EC may mean that this rule of_
_evidence needs to be qualified. Accordingly, where a third party_
_succeeds in establishing that there is a real risk of partitioning of_
_national markets if he himself bears that burden of proof, particularly_
_where the trade mark proprietor markets his products in the European_
_Economic Area using an exclusive distribution system, it is for the_
_proprietor of the trade mark to establish that the products were_
_initially placed on the market outside the European Economic Area_
_by him or with his consent. If such evidence is adduced, it is for the_
_third party to prove the consent of the trade mark proprietor to_
_subsequent marketing of the products in the European Economic_
_Area._

( [1] ) OJ C 247 of 26.8.2000.

**JUDGMENT OF THE COURT**

**(Fifth Chamber)**

**of 10 April 2003**

**in Case C-305/00 (Reference for a preliminary ruling**
**from the Oberlandesgericht Frankfurt am Main): Christian**
**Schulin** **v** **Saatgut-Treuhandverwaltungsgesellschaft**
**mbH** ( [1] )

_**(Plant varieties — System of protection — Article 14(3) of**_
_**Regulation (EC) No 2100/94 and Article 8 of Regulation**_
_**(EC) No 1768/95 — Use by farmers of the product of the**_
_**harvest — Obligation to provide information to the holder**_
_**of the Community right)**_

(2003/C 135/03)

_(Language of the case: German)_

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

In Case C-305/00: Reference to the Court under Article 234
EC by the Oberlandesgericht Frankfurt am Main (Germany) for
a preliminary ruling in the proceedings pending before that
court between Christian Schulin and Saatgut-Treuhandverwaltungsgesellschaft mbH, on the interpretation of the sixth
indent of Article 14(3) of Council Regulation (EC) No 2100/
94 of 27 July 1994 on Community plant variety rights (OJ
1994 L 227, p. 1), and Article 8 of Commission Regulation
(EC) No 1768/95 of 24 July 1995 implementing rules on
the agricultural exemption provided for in Article 14(3) of
Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
(Fifth Chamber), composed of: M. Wathelet, President of the
Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr