CELEX: C2004/085/04
Language: en
Date: 2004-04-03 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 5 February 2004 in Case C-95/01 (Reference for a preliminary ruling from the tribunal de grande instance de Paris): John Greenham v Léonard Abel (Free movement of goods — Articles 28 EC and 30 EC — Prohibition on marketing foodstuffs to which vitamins and minerals have been added — Justification — Proportionality)

C 85/4                   EN                          Official Journal of the European Union                                              3.4.2004
For the purposes of determining whether the ground for refusal set           First, the prior authorisation procedure must be readily accessible and
out in Article 3(1)(c) of Directive 89/104 applies to such a mark, it        capable of being completed within a reasonable time and, if it leads
is irrelevant whether or not there are synonyms capable of designating       to a refusal, the decision of refusal must be open to challenge before
the same characteristics of the goods or services referred to in the         the courts. Secondly, refusal to authorise marketing must be based on
application for registration.                                                a detailed assessment of the risk to public health, based on the most
                                                                             reliable scientific data available and the most recent results of
                                                                             international research.
(1) OJ C 233 of 12.8.2000.
                                                                             (1) OJ C 108 of 7.4.2001.
                  JUDGMENT OF THE COURT
                           (Sixth Chamber)
                                                                                               JUDGMENT OF THE COURT
                         of 5 February 2004
                                                                                                       (Sixth Chamber)
in Case C-95/01 (Reference for a preliminary ruling from
the tribunal de grande instance de Paris): John Greenham                                             of 12 February 2004
                          v Léonard Abel (1)
                                                                             in Case C-218/01 (Reference for a preliminary ruling from
(Free movement of goods — Articles 28 EC and 30 EC —                            the Bundespatentgericht (Germany): Henkel KGaA (1)
Prohibition on marketing foodstuffs to which vitamins and
minerals have been added — Justification — Proportionality)
                                                                             (Approximation of laws — Trade marks — Directive 89/
                            (2004/C 85/04)                                   104/EEC — Article 3(1)(b), (c) and (e) — Grounds for
                                                                             refusal to register — Three-dimensional shape-of-product
                                                                                                mark — Distinctive character
                     (Language of the case: French)
                                                                                                         (2004/C 85/05)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                                                 (Language of the case: German)
In Case C-95/01: Reference to the Court under Article 234 EC                 (Provisional translation; the definitive translation will be published
by the Tribunal de grande instance de Paris (France) for a                                       in the European Court Reports)
preliminary ruling in the criminal proceedings pending before
that court against John Greenham and Léonard Abel, on the
interpretation of Articles 28 EC and 30 EC, the Court (Sixth
Chamber), composed of: V. Skouris, acting for the President of
the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken                   In Case C-218/01: reference to the Court under Article 234
(Rapporteur) and N. Colneric, Judges; J. Mischo, Advocate                    EC by the Bundespatentgericht (Germany) for a preliminary
General; H. von Holstein, Deputy Registrar, has given a                      ruling in the proceedings brought before that court by Henkel
judgment on 5 February 2004, in which it has ruled:                          KGaA, on the interpretation of Article 3(1)(b), (c) and (e) of
                                                                             First Council Directive 89/104/EEC of 21 December 1988 to
                                                                             approximate the laws of the Member States relating to trade
Articles 28 EC and 30 EC must be interpreted as meaning that they            marks (OJ 1989 L 40, p. 1), the Court (Sixth Chamber),
do not preclude a Member State from prohibiting the marketing                composed of C. Gulmann, acting for the President of the
without prior authorisation of foodstuffs lawfully manufactured and          Chamber, J. N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen
marketed in another Member State, where nutrients such as vitamins           and F. Macken (Rapporteur), Judges; Advocate General:
or minerals have been added thereto other than those whose use has           D. Ruíz-Jarabo Colomer, Registrar: L. Hewlett, Principal
been declared lawful in the first Member State, provided that certain        Administrator, has given a judgment on 12 February 2004, in
conditions are satisfied.                                                    which it ruled: