CELEX: C2004/021/07
Language: en
Date: 2004-01-24 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 27 November 2003 in Case C-283/01 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden): Shield Mark BV v Joost Kist h.o.d.n. Memex (Trade marks — Approximation of laws — Directive 89/104/EEC — Article 2 — Signs of which a trade mark may consist — Signs capable of being represented graphically — Sound signs — Musical notation — Written description — Onomatopoeia)

C 21/4                   EN                            Official Journal of the European Union                                              24.1.2004
                  JUDGMENT OF THE COURT                                              represented by a stave divided into measures and showing, in
                                                                                     particular, a clef, musical notes and rests whose form indicates
                          (Sixth Chamber)                                            the relative value and, where necessary, accidentals.
                       of 27 November 2003                                     (1) OJ C 275 of 29.9.2001.
in Case C-283/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Shield Mark BV v Joost
                       Kist h.o.d.n. Memex (1)
(Trade marks — Approximation of laws — Directive 89/
104/EEC — Article 2 — Signs of which a trade mark may                                            JUDGMENT OF THE COURT
consist — Signs capable of being represented graphically —
Sound signs — Musical notation — Written description —                                                    (Sixth Chamber)
                           Onomatopoeia)
                                                                                                       of 27 November 2003
                           (2004/C 21/07)
                                                                               in Case C-429/01: Commission of the European Communi-
                     (Language of the case: Dutch)                                                   ties v French Republic (1)
(Provisional translation; the definitive translation will be published         (Failure of a Member State to fulfil obligations — Failure to
                    in the European Court Reports)                             transpose Directive 90/219/EEC — Genetically modified
                                                                                                   organisms — Contained use)
In Case C-283/01: Reference to the Court under Article 234                                                 (2004/C 21/08)
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
                                                                                                     (Language of the case: French)
court between Shield Mark BV and Joost Kist h.o.d.n. Memex,
on the interpretation of Article 2 of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of                         (Provisional translation; the definitive translation will be published
the Member States relating to trade marks (OJ 1989 L 40,                                            in the European Court Reports)
p. 1), the Court (Sixth Chamber), composed of: V. Skouris,
acting for the President of the Sixth Chamber, J. N. Cunha
Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken
(Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate Gen-                    In Case C-429/01, Commission of the European Communities
eral; M.-F. Contet, Principal Administrator, for the Registrar,                (Agent: G. zur Hausen, assisted by M. van der Woude and
has given a judgment on 27 November 2003, in which it has                      V. Landes) with an address for service in Luxembourg, v French
ruled:                                                                         Republic (Agent: initially by G. de Bergues and D. Colas, then
                                                                               by G. de Bergues and C. Isidoro), with an address for service in
                                                                               Luxembourg, APPLICATION for a declaration that, by failing
1.    Article 2 of First Council Directive 89/104/EEC of 21 Decem-             to transpose correctly and in full Articles 14(a) and (b), 15(1)
      ber 1988 to approximate the laws of the Member States                    and (2), 16(1) and 19(2) to (4) of Council Directive 90/219/
      relating to trade marks is to be interpreted as meaning that             EEC of 23 April 1990 on the contained use of genetically
      sound signs must be capable of being regarded as trade marks             modified micro-organisms (OJ 1990 L 117, p. 1), as amended
      provided that they are capable of distinguishing the goods or            by Commission Directive 94/51/EC of 7 November 1994
      services of one undertaking from those of other undertakings             adapting to technical progress Directive 90/219 (OJ 1994
      and are capable of being represented graphically.                        L 297, p. 29), and by failing to transpose the provisions of
                                                                               that directive in respect of certain contained use by the
2.    Article 2 of Directive 89/104 must be interpreted as meaning             Ministry of Defence, the French Republic has failed to fulfil its
      that a trade mark may consist of a sign which is not in itself           obligations under that directive and Article 249 EC, the Court
      capable of being perceived visually, provided that it can be             (Sixth Chamber), composed of: V. Skouris, acting for the
      represented graphically, particularly by means of images, lines          President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
      or characters, and that its representation is clear, precise, self-      F. Macken and N. Colneric (Rapporteur), Judges; F.G. Jacobs,
      contained, easily accessible, intelligible, durable and objective.       Advocate General; R. Grass, Registrar, has given a judgment
      In the case of a sound sign, those requirements are not satisfied        on 27 November 2003, in which it:
      when the sign is represented graphically by means of a
      description using the written language, such as an indication            1.    Declares that, by failing to transpose correctly and in full
      that the sign consists of the notes going to make up a musical                 Article 14(a) and (b), first subparagraph, third sentence, and
      work, or the indication that it is the cry of an animal, or by                 Article 19(2) to (4) of Council Directive 90/219/EEC of
      means of a simple onomatopoeia, without more, or by means                      23 April 1990 on the contained use of genetically modified
      of a sequence of musical notes, without more. On the other                     micro-organisms, as amended by Commission Directive 94/
      hand, those requirements are satisfied where the sign is                       51/EC of 7 November 1994 adapting to technical progress