CELEX: C2004/085/02
Language: en
Date: 2004-04-03 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 5 February 2004 in Case C-24/00: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) — National legislation exhaustively listing the nutrients which may be added to foodstuffs — Measure having equivalent effect — Justification — Public health — Consumer protection — Proportionality)

C 85/2                  EN                            Official Journal of the European Union                                              3.4.2004
3.  Article 3(1)(c) of Directive 89/104 precludes registration of a                 For the purposes of determining whether Article 3(1)(c) of
    trade mark which consists exclusively of signs or indications                   Directive 89/104 applies to such a mark, it is irrelevant
    which may serve, in trade, to designate characteristics of the                  whether or not there are synonyms capable of designating the
    goods or services in respect of which registration is sought, and               same characteristics of the goods or services mentioned in the
    that is the case even when there are more usual signs or                        application for registration or that the characteristics of the
    indications for designating the same characteristics and regard-                goods or services which may be the subject of the description are
    less of the number of competitors who may have an interest in                   commercially essential or merely ancillary.
    using the signs or indications of which the mark consists.
                                                                              6.    Directive 89/104 prevents a trade mark registration authority
                                                                                    from registering a mark for certain goods or services on
                                                                                    condition that they do not possess a particular characteristic.
    Where the applicable national law provides that the exclusive
    right conferred by registration, by a competent authority in an           7.    The practice of a trade mark registration authority which
    area in which a number of officially recognised languages                       concentrates solely on refusing to register >manifestly inadmis-
    coexist, of a word mark expressed in one of those languages                     sible marks is incompatible with Article 3 of Directive 89/104.
    extends automatically to its translation in the other languages,
    the authority must ascertain as regards each of those translations
    whether the mark actually consists exclusively of signs or                (1) OJ C 47 of 19.2.2000.
    indications which may serve, in trade, to designate characteristics
    of those goods or services.
4.  Article 3(1) of Directive 89/104 must be interpreted as
    meaning that a mark which is descriptive of the characteristics
                                                                                               JUDGMENT OF THE COURT
    of certain goods or services but not of those of other goods or
    services for the purposes of Article 3(1)(c) of Directive 89/104
    cannot be regarded as necessarily having distinctive character in                                   (Sixth Chamber)
    relation to those other goods or services for the purposes of
    subparagraph (b) of the provision.
                                                                                                       of 5 February 2004
                                                                              in Case C-24/00: Commission of the European Communi-
    It is of no relevance that a mark is descriptive of the                                        ties v French Republic (1)
    characteristics of certain goods or services under Article 3(1)(c)
    of Directive 89/104 when it comes to assessing whether the
    same mark has distinctive character in relation to other goods            (Failure of a Member State to fulfil obligations — Articles 30
    or services for the purposes of Article 3(1)(b) of the Directive.         and 36 of the EC Treaty (now, after amendment, Articles 28
                                                                              EC and 30 EC) — National legislation exhaustively listing
                                                                              the nutrients which may be added to foodstuffs — Measure
                                                                              having equivalent effect — Justification — Public health —
                                                                                          Consumer protection — Proportionality)
5.  Article 3(1)(c) of Directive 89/104 must be interpreted as
    meaning that a mark consisting of a word composed of                                                 (2004/C 85/02)
    elements, each of which is descriptive of characteristics of the
    goods or services in respect of which registration is sought, is
    itself descriptive of the characteristics of those goods or services                           (Language of the case: French)
    for the purposes of that provision, unless there is a perceptible
    difference between the word and the mere sum of its parts: that           (Provisional translation; the definitive translation will be published
    assumes either that because of the unusual nature of the                                      in the European Court Reports)
    combination in relation to the goods or services the word creates
    an impression which is sufficiently far removed from that
    produced by the mere combination of meanings lent by the
    elements of which it is composed, with the result that the word
    is more than the sum of its parts, or that the word has become            In Case C-24/00, Commission of the European Communities
    part of everyday language and has acquired its own meaning,               (Agents: R. B. Wainwright and O. Couvert-Castéra) with an
    with the result that it is now independent of its components. In          address for service in Luxembourg, v French Republic (Agents:
    the latter case, it is necessary to ascertain whether a word which        initially R. Abraham and R. Loosli-Surrans, and, subsequently,
    has acquired its own meaning is not itself descriptive for the            J.-F. Dobelle andR. Loosli-Surrans) with an address for service
    purposes of the same provision.                                           in Luxembourg: Application for a declaration that:
 ---pagebreak--- 3.4.2004                EN                          Official Journal of the European Union                                                   C 85/3
—     by failing to adopt legislation ensuring the free movement                              JUDGMENT OF THE COURT
      of foodstuffs for daily consumption and foodstuffs intend-
      ed for particular nutritional uses, which are lawfully
      manufactured and/or marketed in other Member States                                             (Sixth Chamber)
      but contain additives (such as vitamins, minerals and
      other ingredients) not provided for under French legis-
      lation;
                                                                                                    of 12 February 2004
—     by failing to provide for a simplified procedure for having
      a substance included on the national list of authorised               in Case C-265/00 (Reference for a preliminary ruling from
      additives, which is necessary if the above foodstuffs are             the Cour de justice Benelux): Campina Melkunie BV v
      to be marketed in France;                                                                 Benelux-Merkenbureau (1)
—     by hindering the marketing in France of the above                     (Approximation of laws — Trade marks — Directive 89/
      foodstuffs without establishing that their marketing poses            104/EEC — Article 3(1) — Ground for refusal to register
      a risk to public health,                                              — Neologism composed of elements each of which is
                                                                            descriptive of characteristics of the goods or services con-
                                                                                                            cerned)
the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris,                                                (2004/C 85/03)
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,                                     (Language of the case: Dutch)
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:
                                                                            (Provisional translation; the definitive translation will be published
                                                                                                in the European Court Reports)
1.    Declares that, by failing to provide for a simplified procedure
      for having included on the national list of authorised nutrients
      those added to foodstuffs for daily consumption and foodstuffs
      intended for particular nutritional uses which are lawfully
      manufactured and/or marketed in other Member States,                  In Case C-265/00: Reference to the Court under Article 234
                                                                            EC by the Benelux-Gerechtshof for a preliminary ruling in the
                                                                            proceedings pending before that court between Campina
      and
                                                                            Melkunie BV and Benelux-Merkenbureau, on the interpretation
                                                                            of Articles 2 and 3(1) of First Council Directive 89/104/EEC of
      by hindering the marketing in France of certain foodstuffs, such      21 December 1988 to approximate the laws of the Member
      as food supplements and dietary products containing the               States relating to trade marks (OJ 1989 L 40, p. 1), the Court
      substances L-tartrate and L-carnitine, and confectionery and          (Sixth Chamber), composed of: V. Skouris, acting for the
      drinks to which certain nutrients have been added, without            President of the Sixth Chamber, C. Gulmann, J. N. Cunha
      establishing that the marketing of such foodstuffs entails a real     Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
      risk for public health,                                               D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
                                                                            Deputy Registrar, has given a judgment on 12 February 2004,
      the French Republic has failed to fulfil its obligations under        in which it has ruled:
      Article 30 of the EC Treaty (now, after amendment, Article 28
      EC);
                                                                            Article 3(1)(c) of First Council Directive 89/104/EEC of 21 Decem-
                                                                            ber 1988 to approximate the laws of the Member States relating to
2.    Dismisses the remainder of the application; Orders the Com-           trade marks must be interpreted as meaning that a trade mark
      mission of the European Communities and the French Republic           consisting of a neologism composed of elements, each of which is
      to pay their own costs.                                               descriptive of characteristics of the goods or services in respect of
                                                                            which registration is sought, is itself descriptive of the characteristics
                                                                            of those goods or services for the purposes of that provision, unless
                                                                            there is a perceptible difference between the neologism and the mere
                                                                            sum of its parts: that assumes that, because of the unusual nature of
(1) OJ C 149 of 27.5.2000.
                                                                            the combination in relation to the goods or services, the word creates
                                                                            an impression which is sufficiently far removed from that produced
                                                                            by the mere combination of meanings lent by the elements of which
                                                                            it is composed, with the result that the word is more than the sum of
                                                                            its parts.