CELEX: C1995/351/14
Language: en
Date: 1995-12-30 00:00:00
Title: Reference for a preliminary ruling by the Supremo Tribunal Administrativo (Second Chamber - Fiscal Matters) by judgment of that court of 19 October 1995 in the case of Fábrica de Queijo Eru Portuguesa Lda. against Ministério Público and Fazenda Pública (Case C-348/95)

30 . 12 . 95                EN                        Official Journal of the European Communities                                     No C 351 /9
         prejudice to Article 378 of the Act of Accession ( ) or                 ( a ) is the specific object of the rights attaching to a
         any other Community legislation ?                                               trade-mark to be regarded as including the power
                                                                                         conferred on the proprietor of a trade-mark under
(') Charges on milk products at the marketing stage, whether of                          national law to oppose , with regard to alcoholic drinks
       domestic origin or imported , intended for public consumption ,                   manufactured by him, the removal by a third party of
        levied by Iroma .                                                                labels affixed by the proprietor on bottles and on the
( 2 ) Council Directive 77/388/EEC, OJ No L 145 , p . 1 .                                packaging containing them, and bearing his mark, after
n oi No L 302 , 15 . 11 . 1985 , p . 23 .                                                the drinks have been placed by him on the Community
                                                                                         market in that packaging, and the subsequent
                                                                                         re-application of those labels by that third party or their
                                                                                         replacement by similar labels, without thereby in some
                                                                                         way damaging the original condition of the product ?
Reference for a preliminary ruling by the Supremo Tribunal                       ( b ) In so far as the labels are replaced by other similar
Administrativo ( Second Chamber — Fiscal Matters ) by                                    labels, is the position different where the third party
judgment of that court of 19 October 1995 in the case of                                 omits the indication ' pure ' appearing on the original
Fabrica de Queijo Eru Portuguesa Lda. against Ministerio                                 labels and/or, as the case may be, replaces the
                       Publico and Fazenda Publica                                       importer's name with another name ?
                              ( Case C-348/95 )
                                  ( 95/C 351 /14 )                                ( c ) If question ( a ) falls to be answered in the affirmative ,
                                                                                         but the proprietor of the trade-mark avails himself of
                                                                                         the power referred to in that question in order to
 Reference has been made to the Court of Justice of the                                  prevent the third party from removing the
 European Communities by judgment of the Supremo                                          identification marks which the trade-mark proprietor
Tribunal Administrativo ( Supreme Administrative Court )                                 has affixed on or underneath the labels in order to
 ( Second Chamber — Fiscal Matters ) of 19 October 1995 ,                                enable the trade-mark proprietor to detect shortfalls
 which was received at the Court Registry on 13 November                                 within his sales organization and thus to combat
 1995 , for a preliminary ruling in the case of Fabrica de                                parallel trade in his products , must such an exercise of
 Queijo Eru Portuguesa Lda . against Ministerio Publico and                               the trade-mark right be regarded as a 'disguised
 Fazenda Publica on the following questions :                                             restriction on trade between Member States ' aimed at
                                                                                          achieving an artificial compartmentalization of the
  1 . having regard to the facts deemed to have been proven in                            markets ?
         the present judgment and the applicable Community
          legislation , are the goods in question ( cheese ) (') to be             ( d ) To what extent is the answer to . question ( c ) affected
         classified under subheading 0406 90 1 1 of the Common                            where the trade-mark proprietor has affixed those
          Customs Tariff ( CCT ) nomenclature ( 2 )?                                      identification marks either pursuant to a legal
                                                                                          obligation or voluntarily , but in any event with a view
 2 . If not, under which tariff heading should they be                                    to making a 'product recall ' possible and/or in order to
          classified ?                                                                    limit his product liability and/or to combat
                                                                                          counterfeiting, or, as the case may be , solely in order to
  (') As described in footnote 2 of the information notice for Case                       combat parallel trade ?
         C- 164/95 , published in OJ No C 189 of 22 . 7. 1995 , p. 12 .
  ( 2 ) OJ No L 345 of 31 . 12 . 1994 .
                                                                                   Action brought on 10 November 1995 by the Commission
                                                                                    of the European Communities against the Grand Duchy of
  Reference for a preliminary ruling from the Hoge Raad der                                                    Luxembourg
  Nederlanden by judgment of that court of 3 November                                                       (Case C-350/95 )
   1995 in the case of Frits Loendersloot v. George Ballantine                                                ( 95/C 351 / 16 )
                           & Son Ltd and Others
                                ( Case C-349/95 )                                   An action against the Grand Duchy of Luxembourg was
                                    ( 95/C 351 / 15 )                               brought before the Court of Justice of the European
                                                                                    Communities on 10 November 1995 by the Commission of
   Reference has been made to the Court of Justice of the                           the European Communities , represented by Dimitrios
   European Communities by judgment of the Hoge Raad der                            Gouloussis, Legal Adviser, acting as Agent, with an address
   Nederlanden ( Supreme Court of the Netherlands ) of                              for service in Luxembourg at the office of Carlos Gomez de
   3 November 1995 , which was received at the Court Registry                       la Cruz, of the Legal Service, Wagner Centre, Kirchberg.
   on 13 November 1995 , for a preliminary ruling in the case
   of Frits Loendersloot v. George Ballantine & Son Ltd on the                      The Commission of the European Communities claims that
   following questions :                                                            the Court should :