CELEX: C2001/200/69
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-104/01: Reference for a preliminary ruling by the Hoge Raad, Netherlands, by order of that court of 23 February 2001 in the case of Libertel Groep B.V. against Benelux-Merkenbureau

C 200/38                EN                      Official Journal of the European Communities                                       14.7.2001
for service in Luxembourg — appeal against the order of the                (3) In the assessment of the distinctive character of a specific
Court of First Instance of the European Communities (Third                        colour as a trade mark, must account be taken of whether,
Chamber) of 11 July 2000 in Case T-268/99 Fédération                              with regard to that colour, there is a general interest in
Nationale d’Agriculture Biologique des Régions de France and                      availability, such as can exist in respect of signs which
Others v Council [1999] ECR II-2893, seeking to have that                         denote a geographical origin?
order set aside, the other party to the proceedings being
Council of the European Union (Agents F. Anton and                         (4) When considering the question whether a sign, for which
J. Monteiro), the Court (Fifth Chamber), composed of A. La                        registration as a trade mark is sought, possesses the
Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward                     distinctive character referred to at the beginning of Article
(Rapporteur), S. von Bahr and C.W.A. Timmermans, Judges,                          3(1) and in Article 3(1)(b) of the Directive, must the BMB
Advocate General: C. Stix-Hackl, R. Grass, Registrar, made an                     confine itself to an assessment in abstracto of distinctive
order on 10 May 2001, the operative part of which is as                           character or must it take account of all the actual facts of
follows:                                                                          the case, including the use made of the sign and the
                                                                                  manner in which the sign is used?
1.   The appeal is dismissed.
2.   It is unnecessary to give a decision on the applications for leave
     to intervene.                                                         (1) OJ L 40 of 11.2.1989, p. 1.
3.   Fédération Nationale d’Agriculture Biologique des Régions de
     France (FNAB), Syndicat Européen des Transformateurs et
     Distributeurs de Produits de l’Agriculture Biologique (SETRAB)
     and Est Distribution Biogam Sàrl are to pay the costs.
4.   CLESA SA, Danone SA and Compagnie Gervais Danone SA
     are to bear their own costs.
(1) OJ C 335 of 25.11.2000.
                                                                           Reference for a preliminary ruling by the Verwaltungsge-
                                                                           richtshof by order of 29 March 2001 of that court in
                                                                           the case of Cookies World Vertriebsges. m.b.H. i.L. v
                                                                                            Finanzlandesdirektion fur Tirol
Reference for a preliminary ruling by the Hoge Raad,
Netherlands, by order of that court of 23 February 2001                                              (Case C-155/01)
in the case of Libertel Groep B.V. against Benelux-
                          Merkenbureau
                                                                                                    (2001/C 200/70)
                         (Case C-104/01)
                                                                           Reference has been made to the Court of Justice of the
                         (2001/C 200/69)                                   European Communities by order of the Verwaltungsgerichtsh-
                                                                           of (Higher Administrative Court) of 29 March 2001, received
Reference has been made to the Court of Justice of the                     at the Court Registry on 11 April 2001, for a preliminary
European Communities by order of the Hoge Raad (High                       ruling in the case of Cookies World Vertriebsges. m.b.H. i.L. v
Court), Netherlands, of 23 February 2001, received at the                  Finanzlandesdirektion fur Tirol on the following question:
Court Registry on 5 March 2001, for a preliminary ruling in
the case of Libertel Groep B.V. against Benelux-Merkenbureau
on the following questions:                                                Is it compatible with the Sixth Council Directive 77/388/EEC
(1) Is it possible for a single specific colour which is                   of 17 May 1977 (1) on the harmonisation of the laws of the
     represented as such or is designated by an internationally            Member States relating to turnover taxes — Common system
     applied body of rules to acquire a distinctive character for          of value added tax: uniform basis of assessment, in particular
     certain goods or services within the meaning of the                   Articles 5 and 6 thereof, for a Member State to treat the
     opening words of Article 3(1) and of Article 3(b) of                  following event as a taxable transaction: the incurring of
     Council Directive 89/104/EEC of 21 December 1988 (1)?                 expenditure relating to services supplied abroad that, if they
                                                                           had been supplied within the national territory to the trader,
(2) If the answer to the first question is in the affirmative:             would not entitle the trader to a deduction of input tax?
     (a)    in what circumstances may it be accepted that a
            single specific colour possesses a distinctive charac-
            ter in the sense used above?                                   (1) OJ 1977 L 145, p. 1.
     (b) does it make any difference if registration is sought
            for a wide range of goods and/or services, rather
            than for a specific product or service, or category of
            goods or services respectively?