CELEX: C2003/135/02
Language: en
Date: 2003-06-07 00:00:00
Title: Judgment of the Court of 8 April 2003 in Case C-244/00 (Reference for a preliminary ruling from the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle sports + sportswear Handelsgesellschaft mbH, Michael Orth (Trade marks — Directive 89/104/EEC — Article 7(1) — Exhaustion of the right conferred by the trade mark — Evidence — Place where the goods are first placed on the market by the trade mark proprietor or with his consent — Consent of the trade mark proprietor to placing on the market in the EEA)

C 135/2                  EN                           Official Journal of the European Union                                              7.6.2003
8.    Dismisses the remainder of the application;                             States relating to trade marks, as amended by the Agreement on the
                                                                              European Economic Area of 2 May 1992. However, the requirements
9.    Orders the parties to bear their own costs.                             deriving from the protection of the free movement of goods enshrined,
                                                                              inter alia, in Articles 28 EC and 30 EC may mean that this rule of
                                                                              evidence needs to be qualified. Accordingly, where a third party
( 1) OJ C 246 of 28.08.1999.                                                  succeeds in establishing that there is a real risk of partitioning of
                                                                              national markets if he himself bears that burden of proof, particularly
                                                                              where the trade mark proprietor markets his products in the European
                                                                              Economic Area using an exclusive distribution system, it is for the
                                                                              proprietor of the trade mark to establish that the products were
                                                                              initially placed on the market outside the European Economic Area
                                                                              by him or with his consent. If such evidence is adduced, it is for the
                  JUDGMENT OF THE COURT                                       third party to prove the consent of the trade mark proprietor to
                                                                              subsequent marketing of the products in the European Economic
                                                                              Area.
                           of 8 April 2003
in Case C-244/00 (Reference for a preliminary ruling from                     (1 ) OJ C 247 of 26.8.2000.
the Bundesgerichtshof): Van Doren + Q.GmbH v Lifestyle
sports + sportswear Handelsgesellschaft mbH, Michael
                                Orth (1)
(Trade marks — Directive 89/104/EEC — Article 7(1) —
Exhaustion of the right conferred by the trade mark —
                                                                                                JUDGMENT OF THE COURT
Evidence — Place where the goods are first placed on the
market by the trade mark proprietor or with his consent —
Consent of the trade mark proprietor to placing on the                                                   (Fifth Chamber)
                         market in the EEA)
                                                                                                        of 10 April 2003
                           (2003/C 135/02)
                                                                              in Case C-305/00 (Reference for a preliminary ruling
                    (Language of the case: German)                            from the Oberlandesgericht Frankfurt am Main): Christian
                                                                              Schulin v Saatgut-Treuhandverwaltungsgesellschaft
                                                                                                              mbH (1)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                              (Plant varieties — System of protection — Article 14(3) of
                                                                              Regulation (EC) No 2100/94 and Article 8 of Regulation
                                                                              (EC) No 1768/95 — Use by farmers of the product of the
In Case C-244/00: Reference to the Court under Article 177                    harvest — Obligation to provide information to the holder
of the EC Treaty (now Article 234 EC) by the Bundesgerichtshof                                      of the Community right)
(Germany) for a preliminary ruling in the proceedings pending
before that court between Van Doren + Q.GmbH and Lifestyle                                               (2003/C 135/03)
sports + sportswear Handelsgesellschaft mbH, Michael Orth,
on the interpretation of Articles 28 EC and 30 EC and                                             (Language of the case: German)
of Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks (OJ 1989 L 40, p. 1), as amended               (Provisional translation; the definitive translation will be published
by the Agreement on the European Economic Area of                                                 in the European Court Reports)
2 May 1992 (OJ 1994 L 1, p. 3), the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
and R. Schintgen (Presidents of Chambers), C. Gulmann                         In Case C-305/00: Reference to the Court under Article 234
(Rapporteur), A. La Pergola, P. Jann, V. Skouris, F. Macken,                  EC by the Oberlandesgericht Frankfurt am Main (Germany) for
N. Colneric and S. von Bahr, Judges; C. Stix-Hackl, Advocate                  a preliminary ruling in the proceedings pending before that
General; H.A. Rühl, Principal Administrator, for the Registrar,               court between Christian Schulin and Saatgut-Treuhandverwal-
has given a judgment on 8 April 2003, in which it has ruled:                  tungsgesellschaft mbH, on the interpretation of the sixth
                                                                              indent of Article 14(3) of Council Regulation (EC) No 2100/
A rule of evidence according to which exhaustion of the trade mark            94 of 27 July 1994 on Community plant variety rights (OJ
right constitutes a plea in defence for a third party against whom the        1994 L 227, p. 1), and Article 8 of Commission Regulation
trade mark proprietor brings an action, so that the existence of the          (EC) No 1768/95 of 24 July 1995 implementing rules on
conditions for such exhaustion must, as a rule, be proved by the third        the agricultural exemption provided for in Article 14(3) of
party who relies on it, is consistent with Community law and, in              Regulation No 2100/94 (OJ 1995 L 173, p. 14), the Court
particular, with Articles 5 and 7 of First Council Directive 89/104/          (Fifth Chamber), composed of: M. Wathelet, President of the
EEC of 21 December 1988 to approximate the laws of the Member                 Chamber, C.W.A. Timmermans, D.A.O. Edward, S. von Bahr