CELEX: C2002/003/13
Language: en
Date: 2002-01-05 00:00:00
Title: Judgment of the Court of 20 November 2001 in Joined Cases C-414/99 to C-416/99 [reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (Patent Court)]: Zino Davidoff SA and A & G Imports Ltd (C-414/99), between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the rights conferred by a trade mark — Goods placed on the market outside the EEA — Imported into the EEA — Consent of the trade mark proprietor — Whether consent required to be express or implied — Law governing the contract Presumption of consent — Non-applicability)

C 3/10                 EN                      Official Journal of the European Communities                                            5.1.2002
2.    Annuls the decision of the First Board of Appeal of the Office      the European Economic Area of 2 May 1992 (OJ 1994 L 1,
      for Harmonisation in the Internal market (Trade Marks and           p. 3) — the Court, composed of: G.C. Rodrı́guez Iglesias,
      Designs) of 31 July 1998 (Case R 35/1998-1) in so far as it         President, P. Jann, N. Colneric and S. von Bahr (Presidents of
      refused the application for registration of ‘BABY-DRY’ as a         Chambers), C. Gulmann (Rapporteur), D.A.O. Edward, A. La
      trade mark on the basis of Article 7(1)(c) of Regulation            Pergola, J.-P. Puissochet, L. Sevón, V. Skouris and C.W.A. Tim-
      No 40/94;                                                           mermans, Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
                                                                          Administrator, for the Registrar, has given a judgment on
                                                                          20 November 2001, in which it has ruled:
3.    Orders the Office for Harmonisation in the Internal Market
      (Trade Marks and Designs) to pay the costs both at first
      instance and on appeal.
                                                                          1.   On a proper construction of Article 7(1) of First Council
                                                                               Directive 89/104/EEC of 21 December 1988 to approximate
(1) OJ C 6 of 8.1.2000.
                                                                               the laws of the Member States relating to trade marks, as
                                                                               amended by the Agreement on the European Economic Area of
                                                                               2 May 1992, the consent of a trade mark proprietor to the
                                                                               marketing within the European Economic Area of products
                                                                               bearing that mark which have previously been placed on the
                                                                               market outside the European Economic Area by that proprietor
                                                                               or with his consent may be implied, where it follows from facts
                                                                               and circumstances prior to, simultaneous with or subsequent to
                                                                               the placing of the goods on the market outside the European
                 JUDGMENT OF THE COURT
                                                                               Economic Area which, in the view of the national court,
                                                                               unequivocally demonstrate that the proprietor has renounced
                     of 20 November 2001                                       his right to oppose placing of the goods on the market within
                                                                               the European Economic Area.
in Joined Cases C-414/99 to C-416/99 [reference for a
preliminary ruling from the High Court of Justice of
England and Wales, Chancery Division (Patent Court)]:                     2.   Implied consent cannot be inferred:
Zino Davidoff SA and A & G Imports Ltd (C-414/99),
between Levi Strauss & Co., Levi Strauss (UK) Ltd and
Tesco Stores Ltd, Tesco plc (C-415/99), and between Levi                       —      from the fact that the proprietor of the trade mark has not
Strauss & Co., Levi Strauss (UK) Ltd v Costco Wholesale                               communicated to all subsequent purchasers of the goods
                             UK Ltd (1)                                               placed on the market outside the European Economic
                                                                                      Area his opposition to marketing within the European
(Trade marks — Directive 89/104/EEC — Article 7(1) —                                  Economic Area;
Exhaustion of the rights conferred by a trade mark — Goods
placed on the market outside the EEA — Imported into the
EEA — Consent of the trade mark proprietor — Whether                           —      from the fact that the goods carry no warning of a
consent required to be express or implied — Law governing                             prohibition of their being placed on the market within the
  the contract Presumption of consent — Non-applicability)                            European Economic Area;
                           (2002/C 3/13)
                                                                               —      from the fact that the trade mark proprietor has transferred
                                                                                      the ownership of the products bearing the trade mark
                   (Language of the case: English)                                    without imposing any contractual reservations and that,
                                                                                      according to the law governing the contract, the property
                                                                                      right transferred includes, in the absence of such reser-
                                                                                      vations, an unlimited right of resale or, at the very least,
In Joined Cases C-414/99 to C-416/99 (reference to the Court                          a right to market the goods subsequently within the
under Article 234 EC) from the High Court of Justice of                               European Economic Area.
England and Wales, Chancery Division (Patent Court) (United
Kingdom of Great Britain and Northern Ireland) for a prelimi-
nary ruling in the proceedings pending before that court                  3.   With regard to exhaustion of the trade mark proprietor’s
between Zino Davidoff SA and A & G Imports Ltd (C-414/99),
                                                                               exclusive right, it is not relevant:
between Levi Strauss & Co., Levi Strauss (UK) Ltd and Tesco
Stores Ltd, Tesco plc (C-415/99), and between Levi Strauss &
Co., Levi Strauss (UK) Ltd v Costco Wholesale UK Ltd, formerly
Costco UK Ltd (C-410/99) — on the interpretation of Article 7                  —      that the importer of goods bearing the trade mark is not
of First Council Directive 89/104/EEC of 21 December 1988                             aware that the proprietor objects to their being placed on
to approximate the laws of the Member States relating to trade                        the market in the European Economic Area or sold there
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on                            by traders other than authorised retailers, or
 ---pagebreak--- 5.1.2002                EN                      Official Journal of the European Communities                                            C 3/11
      —    that the authorised retailers and wholesalers have not                            JUDGMENT OF THE COURT
           imposed on their own purchasers contractual reservations
           setting out such opposition, even though they have been
           informed of it by the trade mark proprietor.                                              (Third Chamber)
(1) OJ C 6 of 8.1.2000; OJ C 79 of 18.3.2000.
                                                                                                  of 13 November 2001
                                                                           in Case C-427/00: Commission of the European Communi-
                                                                           ties v United Kingdom of Great Britain and Northern
                                                                                                         Ireland (1)
                 JUDGMENT OF THE COURT
                                                                           (Failure by a Member State to fulfil its obligations —
                         (Sixth Chamber)                                   Quality of bathing water — Inadequate compliance with
                                                                                                  Directive 76/160/EEC)
                      of 27 September 2001
                                                                                                       (2002/C 3/15)
in Case C-442/99 P: Cordis Obst und Gemüse Grosshandel
                             GmbH (1)
                                                                                                (Language of the case: English)
(Appeal — Common organisation of the market — Bananas
— Imports from ACP States and third countries — Request
for import licences — Transitional measures — Regulation
      (EEC) No 404/93 — Principle of equal treatment)
                           (2002/C 3/14)                                   In Case C-427/00: Commission of the European Communities
                                                                           (Agent: R.B. Wainwright) v United Kingdom of Great Britain
                                                                           and Northern Ireland (Agent: G. Amodeo, assisted by D. Wyatt)
                   (Language of the case: German)                          — application for a declaration that by failing to ensure that
                                                                           bathing water in the United Kingdom complies with the limit
(Provisional translation; the definitive translation will be published     values set in accordance with Article 3 of Council Directive
                   in the European Court Reports)                          76/160/EEC of 8 December 1975 concerning the quality of
                                                                           bathing water (OJ 1976 L 31, p. 1), the United Kingdom has
                                                                           failed to fulfil its obligations under that Directive — the Court
                                                                           (Third Chamber), composed of. C. Gulmann, acting for the
In Case C-442/99 P: Cordis Obst und Gemüse Grosshandel                     President of the Chamber, J.-P. Puissochet and J.N. Cunha
GmbH, established in Ostrau (Germany), (Rechtsanwalt:                      Rodrigues (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,
G. Meier) — appeal against the judgment of the Court of First              Advocate General; R. Grass, Registrar, has given a judgment
Instance of the European Communities (Fifth Chamber) in                    on 13 November 2001, in which it:
Case T-612/97 Cordis v Commission [1999] ECR II-2771,
seeking to have that judgment set aside, the other parties
to the proceedings being: Commission of the European
Communities (Agent: K.-D. Borchardt) and French Republic                   1.    Declares that, since it has not ensured that bathing water
(Agents: K. Rispal-Bellanger and C. Vasak) — the Court                           complied with the limit values set in accordance with Article 3
(Sixth Chamber), composed of: C. Gulmann, President of the                       of Council Directive 761160/EEC of 8 December 1975,
Chamber, J.-P. Puissochet, R. Schintgen, N. Colneric and                         concerning the quality of bathing water, the United Kingdom
J.N. Cunha Rodrigues (Rapporteur), Judges; J. Mischo, Advocate                   of Great Britain and Northern Ireland has failed to fulfil its
General; H. von Holstein, Deputy Registrar, for the Registrar,                   obligations under that Directive.
has given a judgment on 27 September 2001, in which it:
                                                                           2.    Orders the United Kingdom of Great Britain and Northern
1.    Dismisses the appeal;                                                      Ireland to pay the costs.
2.    Orders Cordis Obst und Gemüse Grosshiandel to pay the costs;
3.    Orders the French Republic to bear its own costs.
                                                                           (1) OJ C 28 of 27.1.2001.
(1) OJ C 47 of 19.2.2000.