Source: EURLEX
Language: en
Format: md

10.5.2003 EN Official Journal of the European Union C 112/3

**JUDGMENT OF THE COURT**

**of 20 March 2003**

**in Case C-291/00 (Reference for a preliminary ruling from**
**the Tribunal de Grande Instance de Paris): LTJ Diffusion**
**SA v Sadas Vertbaudet SA** ( [1] )

_**(Trade marks — Approximation of laws — Directive 89/**_
_**104/EEC — Article 5(1)(a) — Notion of sign which is**_
_**identical with the trade mark — Use of the distinctive**_
_**element of the mark to the exclusion of other elements —**_
_**Use of all the elements making up the trade mark but with**_
_**the addition of other elements)**_

(2003/C 112/04)

_(Language of the case: French)_

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

In Case C-291/00: Reference to the Court under Article 234
EC by the Tribunal de grande instance de Paris (France) for a
preliminary ruling in the proceedings pending before that
court between LTJ Diffusion SA and Sadas Vertbaudet SA, on
the interpretation of Article 5(1)(a) 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, composed of: G. C. Rodríguez Iglesias,
President, M. Wathelet and R. Schintgen (Presidents of Chambers), C. Gulmann, P. Jann, F. Macken (Rapporteur), N. Colneric, S. von Bahr and J. N. Cunha Rodrigues, Judges; F. G. Jacobs,
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 20 March 2003, in
which it has ruled:

_Article 5(1)(a) 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 sign is identical_
_with the trade mark where it reproduces, without any modification or_
_addition, all the elements constituting the trade mark or where,_
_viewed as a whole, it contains differences so insignificant that they_
_may go unnoticed by an average consumer._

( [1] ) OJ C 273 of 23.9.2000.

**JUDGMENT OF THE COURT**

**of 11 March 2003**

**in Case C-40/01 (Reference for a preliminary ruling from**
**the Hoge Raad der Nederlanden): Ansul BV v Ajax**
**Brandbeveiliging BV** ( [1] )

_**(Trade marks — Directive 89/104/EEC — Article 12(1) —**_
_**Revocation of trade mark owner’s rights — Concept of**_
_**genuine use of a trade mark — Maintenance of goods already**_
_**sold and sales of replacement parts and accessories)**_

(2003/C 112/05)

_(Language of the case: Dutch)_

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

In Case C-40/01: 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 Ansul BV and Ajax Brandbeveiliging BV, on the
interpretation of Article 12(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, composed of: G. C. Rodríguez Iglesias,
President, J.-P. Puissochet (Rapporteur), M. Wathelet and
C. W. A. Timmermans, Presidents of Chamber, C. Gulmann,
A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric and
S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 11 March 2003, in which it has
ruled:

1. _Article 12(1) of First Council Directive 89/104/EEC of_
_21 December 1988 to approximate the laws of the Member_
_States relating to trade marks must be interpreted as meaning_
_that there is ‘genuine use’ of a trade mark where the mark is_
_used in accordance with its essential function, which is to_
_guarantee the identity of the origin of the goods or services for_
_which it is registered, in order to create or preserve an outlet for_
_those goods or services; genuine use does not include token use_
_for the sole purpose of preserving the rights conferred by the_
_mark. When assessing whether use of the trade mark is genuine,_
_regard must be had to all the facts and circumstances relevant_
_to establishing whether the commercial exploitation of the mark_
_is real, particularly whether such use is viewed as warranted in_
_the economic sector concerned to maintain or create a share in_
_the market for the goods or services protected by the mark, the_
_nature of the goods or services at issue, the characteristics of the_
_market and the scale and frequency of use of the mark. The fact_
_that a mark that is not used for goods newly available on the_
_market but for goods that were sold in the past does not mean_
_that its use is not genuine, if the proprietor makes actual use of_
_the same mark for component parts that are integral to the_

C 112/4 EN Official Journal of the European Union 10.5.2003

_make-up or structure of such goods, or for goods or services_
_directly connected with the goods previously sold and intended_
_to meet the needs of customers of those goods._

2. _It is for the national court to draw the consequences for the_
_resolution of the dispute before it of the interpretation of the_
_Community law concept of ‘genuine use’ of the trade mark given_
_in the reply to the first question referred for a preliminary ruling._

( [1] ) OJ C 95 of 24.3.2001.

**JUDGMENT OF THE COURT**

**(Sixth Chamber)**

**of 20 March 2003**

**in Case C-135/01: Commission of the European Communi-**
**ties v Federal Republic of Germany** ( [1] )

_**(Failure of a Member State to fulfil obligations — Directive**_
_**98/56/EC — Marketing of propagating material of orna-**_
_**mental plants — Failure to transpose within the prescribed**_
_**period — Difficulties of interpretation)**_

(2003/C 112/06)

_(Language of the case: German)_

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

In Case C-135/01, Commission of the European Communities
(Agent: G. Braun) v Federal Republic of Germany (Agents:
W.-D. Plessing and B. Muttelsee-Schön): Application for a
declaration that, by failing within the prescribed period to
adopt all the laws, regulations and administrative measures
necessary in order to transpose into national law Council
Directive 98/56/EC of 20 July 1998 on the marketing of
propagating material of ornamental plants (OJ 1998 L 226,
p. 16), the Federal Republic of Germany has failed to fulfil its
obligations under the EC Treaty and that directive, the Court
(Sixth Chamber), composed of: J.-P. Puissochet, President of
the Chamber, C. Gulmann and V. Skouris (Rapporteur),
F. Macken and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed,
Advocate General; R. Grass, Registrar, has given a judgment
on 20 March 2003, in which it has ruled:

1. _Declares that, by failing within the prescribed period to adopt_
_all the laws, regulations and administrative measures necessary_
_to transpose into national law Council Directive 98/56/EC of_
_20 July 1998 on the marketing of propagating material of_
_ornamental plants, the Federal Republic of Germany has failed_
_to fulfil its obligations under that directive;_

2. _Orders the Federal Republic of Germany to pay the costs._

( [1] ) OJ C 161 of 2.6.2001.

**JUDGMENT OF THE COURT**

**of 11 March 2003**

**in Case C-186/01 (Reference for a preliminary ruling from**
**the Verwaltungsgericht Stuttgart): Alexander Dory v**
**Federal Republic of Germany** ( [1] )

_**(Inapplicability of Community law to compulsory military**_
_**service — Equal treatment of men and women — Article 2**_
_**of Directive 76/207/EEC — Compulsory military service in**_
_**Germany limited to men only — Directive not applicable)**_

(2003/C 112/07)

_(Language of the case: German)_

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

In Case C-186/01: Reference to the Court under Article 234
EC by the Verwaltungsgericht Stuttgart (Germany) for a
preliminary ruling in the proceedings pending before that
court between Alexander Dory and Federal Republic of
Germany, on the interpretation of Article 2 of Council
Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women
as regards access to employment, vocational training and
promotion, and working conditions (OJ 1976 L 39, p. 40),
and, more generally, on the compatibility with Community
law of the limitation of compulsory military service in
Germany to men, the Court, composed of: G.C. Rodríguez
Iglesias, President, J.-P. Puissochet (Rapporteur), M. Wathelet,
R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris,
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
Judges; C. Stix-Hackl, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
11 March 2003, in which it has ruled:

_Community law does not preclude compulsory military service being_
_reserved to men._

( [1] ) OJ C 200 of 14.7.2001.