CELEX: C2003/146/11
Language: en
Date: 2003-06-21 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 8 May 2003 in Case C-111/01 (Reference for a preliminary ruling from the Oberster Gerichtshof): Gantner Electronic GmbH v Basch Exploitatie Maatschappĳ BV (Brussels Convention — Article 21 — Lis pendens — Set-off)

21.6.2003                 EN                           Official Journal of the European Union                                                C 146/7
p. 1), the Court, composed of: J.-P. Puissochet, President of the                                JUDGMENT OF THE COURT
Sixth Chamber, acting for the President, M. Wathelet and
C. W. A. Timmermans, Presidents of Chambers, C. Gulmann,
D. A. O. Edward, P. Jann, F. Macken, S. von Bahr and                                                      (Fifth Chamber)
J. N. Cunha Rodrigues (Rapporteur), Judges; P. Léger, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-                                             of 8 May 2003
trar, has given a judgment on 6 May 2003, in which it has
ruled:
                                                                               in Case C-111/01 (Reference for a preliminary ruling from
                                                                               the Oberster Gerichtshof): Gantner Electronic GmbH v
                                                                                            Basch Exploitatie Maatschappij BV ( 1)
1.    A colour per se, not spatially delimited, may, in respect of
      certain goods and services, have a distinctive character within
      the meaning of Article 3(1)(b) and Article 3(3) of First Council         (Brussels Convention — Article 21 — Lis pendens — Set-
      Directive 89/104/EEC of 21 December 1988 to approximate                                                     off)
      the laws of the Member States relating to trade marks, provided
      that, inter alia, it may be represented graphically in a way that                                   (2003/C 146/11)
      is clear, precise, self-contained, easily accessible, intelligible,
      durable and objective. The latter condition cannot be satisfied
      merely by reproducing on paper the colour in question, but may                               (Language of the case: German)
      be satisfied by designating that colour using an internationally
      recognised identification code.                                          (Provisional translation; the definitive translation will be published
                                                                                                   in the European Court Reports)
2.    In assessing the potential distinctiveness of a given colour as a
      trade mark, regard must be had to the general interest in not
      unduly restricting the availability of colours for the other traders
      who offer for sale goods or services of the same type as those in        In Case C-111/01: Reference to the Court under the Protocol
      respect of which registration is sought.                                 of 3 June 1971 on the interpretation by the Court of Justice of
                                                                               the Convention of 27 September 1968 on Jurisdiction and the
                                                                               Enforcement of Judgments in Civil and Commercial Matters
3.    A colour per se may be found to possess distinctive character            by the Oberster Gerichtshof (Austria) for a preliminary ruling
      within the meaning of Article 3(1)(b) and Article 3(3) of                in the proceedings pending before that court between Gantner
      Directive 89/104, provided that, as regards the perception of            Electronic GmbH and Basch Exploitatie Maatschappij BV,
      the relevant public, the mark is capable of identifying the              on the interpretation of Article 21 of the abovementioned
      product or service for which registration is sought as originating       Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
      from a particular undertaking and distinguishing that product            amended by the Convention of 9 October 1978 on the
      or service from those of other undertakings.                             accession of the Kingdom of Denmark, Ireland and the United
                                                                               Kingdom of Great Britain and Northern Ireland (OJ 1978
                                                                               L 304, p. 1, and — amended text — p. 77), by the Convention
4.    The fact that registration as a trade mark of a colour per se is         of 25 October 1982 on the accession of the Hellenic Republic
      sought for a large number of goods or services, or for a specific        (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on
      product or service or for a specific group of goods or services, is      the accession of the Kingdom of Spain and the Portuguese
      relevant, together with all the other circumstances of the               Republic (OJ 1989 L 285, p. 1) and by the Convention of
      particular case, to assessing both the distinctive character of the      29 November 1996 on the accession of the Republic of
      colour in respect of which registration is sought, and whether           Austria, the Republic of Finland and the Kingdom of Sweden
      its registration would run counter to the general interest in not        (OJ 1997 C 15, p. 1), the Court (Fifth Chamber), composed
      unduly limiting the availability of colours for the other operators      of: M. Wathelet (Rapporteur), President of the Chamber,
      who offer for sale goods or services of the same type as those in        C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr,
      respect of which registration is sought.                                 Judges; P. Léger, Advocate General; M.-F. Contet, Principal
                                                                               Administrator, for the Registrar, has given a judgment on
                                                                               8 May 2003, in which it has ruled:
5.    In assessing whether a trade mark has distinctive character
      within the meaning of Article 3(1)(b) and Article 3(3) of
      Directive 89/104, the competent authority for registering trade          Article 21 of the Convention of 27 September 1968 on Jurisdiction
      marks must carry out an examination by reference to the actual           and the Enforcement of Judgments in Civil and Commercial Matters,
      situation, taking account of all the circumstances of the case           as amended by the Convention of 9 October 1978 on the accession
      and in particular any use which has been made of the mark.               of the Kingdom of Denmark, Ireland and the United Kingdom of
                                                                               Great Britain and Northern Ireland, by the Convention of 25 October
                                                                               1982 on the accession of the Hellenic Republic, by the Convention
                                                                               of 26 May 1989 on the accession of the Kingdom of Spain and the
( 1) OJ C 200 of 14.7.2001.                                                    Portuguese Republic, and by the Convention of 29 November 1996
                                                                               on the accession of the Republic of Austria, the Republic of Finland
                                                                               and the Kingdom of Sweden, must be construed as meaning that, in
                                                                               order to determine whether two claims brought between the same
                                                                               parties before the courts of different Contracting States have the same
 ---pagebreak--- C 146/8                  EN                          Official Journal of the European Union                                               21.6.2003
subject-matter, account should be taken only of the claims of the                              JUDGMENT OF THE COURT
respective applicants, to the exclusion of the defence submissions
raised by a defendant.
                                                                                                        (Fifth Chamber)
( 1) OJ C 134 of 5.5.2001.
                                                                                                        of 3 April 2003
                                                                             in Case C-116/01 (Reference for a preliminary ruling from
                                                                             the Raad van State): SITA EcoService Nederland BV,
                                                                             formerly Verol Recycling Limburg BV v Minister van
                                                                             Volkshuisvesting, Ruimtelijke Ordening en Milieu-
                  JUDGMENT OF THE COURT                                                                     beheer (1)
                          (Sixth Chamber)                                    (Environment — Waste — Regulation (EEC) No 259/93 —
                                                                             Directive 75/442/EEC — Treatment of waste in several
                                                                             stages — Use of waste as fuel in the cement industry and
                            of 8 May 2003
                                                                             use of incineration residues as raw material in cement
                                                                             manufacture — Classification as a recovery operation or as
in Case C-113/01 (Reference for a preliminary ruling from                    a disposal operation — Concept of the use of waste princi-
     the Högsta förvaltningsdomstolen): Paranova Oy (1)                             pally as a fuel or other means to generate energy)
(Interpretation of Article 28 EC and Article 30 EC —                                                    (2003/C 146/13)
Medicinal products — Withdrawal of parallel import licence
in consequence of waiver of the marketing authorisation for
               the medicinal product of reference)                                                (Language of the case: Dutch)
                           (2003/C 146/12)                                   (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
                    (Language of the case: Swedish)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           In Case C-116/01: Reference to the Court under Article 234
                                                                             EC by the Raad van State (Netherlands) for a preliminary ruling
                                                                             in the proceedings pending before that court between SITA
                                                                             EcoService Nederland BV, formerly Verol Recycling Limburg
In Case C-113/01: Reference to the Court under Article                       BV and Minister van Volkshuisvesting, Ruimtelijke Ordening
234 EC by Högsta förvaltningsdomstolen (Finland) for a                       en Milieubeheer, on the interpretation of Council Directive 75/
preliminary ruling in the proceedings pending before that                    442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as
court brought by Paranova Oy on the interpretation of                        amended by Council Directive 91/156/EEC of 18 March 1991
Article 28 EC and Article 30 EC, the Court (Sixth Chamber),                  (OJ 1991 L 78, p. 32) and Commission Decision 96/350/EC
composed of: J.-P. Puissochet, President of the Chamber,                     of 24 May 1996 (OJ 1996 L 135, p. 32), the Court
C. Gulmann (Rapporteur), F. Macken, N. Colneric and                          (Fifth Chamber), composed of: M. Wathelet, President of the
J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate General;                 Chamber, C.W.A. Timmermans, A. La Pergola (Rapporteur),
H.A. Rühl, Principal Administrator, for the Registrar, has given             P. Jann and A. Rosas, Judges; F.G. Jacobs, Advocate General;
a judgment on 8 May 2003, in which it has ruled:                             M.-F. Contet, Principal Administrator, for the Registrar, has
                                                                             given a judgment on 3 April 2003, in which it has ruled:
Article 28 EC and Article 30 EC preclude national legislation under
which the withdrawal, at the request of its holder, of a marketing           1.    Where a waste treatment process comprises several distinct
authorisation of reference of itself entails the withdrawal of the                 stages, it must be classified as a disposal operation or a recovery
parallel import licence granted for the medicinal product in question.             operation within the meaning of Council Directive 75/442/
However, those provisions do not preclude restrictions on parallel                 EEC of 15 July 1975 on waste, as amended by Council
imports of the medicinal product in question where there is in fact a              Directive 91/156/EEC of 18 March 1991 and by Commission
risk to the health of humans as a result of the continued existence of             Decision 96/350/EC of 24 May 1996, for the purpose
that medicinal product on the market of the importing Member State.                of implementing Council Regulation (EEC) No 259/93 of
                                                                                   1 February 1993 on the supervision and control of shipments
                                                                                   of waste within, into and out of the European Community, as
( 1) OJ C 150 of 19.5.2001.
                                                                                   amended by Council Regulation (EC) No 120/97 of 20 January
                                                                                   1997, taking into account only the first operation that the
                                                                                   waste is to undergo subsequent to shipment;