CELEX: C2004/085/06
Language: en
Date: 2004-04-03 00:00:00
Title: Judgment of the Court (Third Chamber) of 12 February 2004 in Case C- 330/01 P: Hortiplant SAT v Commission of the European Communities (Agriculture — EAGGF — Cancellation and request for repayment of financial assistance — Regulation (EEC) No 4253/88 — Article 24(1) and (2) — Obligation on the Commission to request the Member State concerned to submit observations before cancelling financial assistance)

3.4.2004                 EN                           Official Journal of the European Union                                                C 85/5
1.    For three-dimensional trade marks consisting of the packaging                            JUDGMENT OF THE COURT
      of goods which are packaged in trade for reasons linked to the
      very nature of the goods, the packaging thereof must be
      assimilated to the shape of the goods, so that that packaging
                                                                                                       (Third Chamber)
      may constitute the shape of the goods within the meaning of
      Article 3(1)(e) of the First Council Directive 89/104/EEC of
      21 December 1988 to approximate the laws of the Member
      States relating to trade marks and may, where appropriate,                                     of 12 February 2004
      serve to designate characteristics of the packaged goods,
      including their quality, within the meaning of Article 3(1)(c) of
      that directive.
                                                                              in Case C- 330/01 P: Hortiplant SAT v Commission of the
                                                                                                 European Communities (1)
2.    For three-dimensional trade marks consisting of the packaging
      of goods which are packaged in trade for reasons linked to the          (Agriculture — EAGGF — Cancellation and request for
      very nature of the product, their distinctive character within the      repayment of financial assistance — Regulation (EEC)
      meaning of Article 3(1)(b) of Directive 89/104 must be                  No 4253/88 — Article 24(1) and (2) — Obligation on the
      assessed by reference to the perception of the average consumer         Commission to request the Member State concerned to
      of such goods, who is reasonably well informed and reasonably            submit observations before cancelling financial assistance)
      observant and circumspect. Such a trade mark must enable such
      a consumer to distinguish the product concerned from those
      of other undertakings without conducting an analytical or                                         (2004/C 85/06)
      comparative examination and without paying particular atten-
      tion.
                                                                                                 (Language of the case: Spanish)
3.    The distinctive character of a trade mark within the meaning of
      Article 3(1)(b) of Directive 89/104 may be assessed solely on           (Provisional translation; the definitive translation will be published
      the basis of national trade usage, without any need for other                              in the European Court Reports)
      administrative investigations to be undertaken in order to
      determine whether and to what extent identical trade marks
      have been registered or have been refused registration in other
      Member States of the European Union.
                                                                              In Case C-330/01 P, Hortiplant SAT established in Amposta
      The fact that an identical trade mark has been registered in one        (Spain), represented by C. Fernández Vicién and I. Moreno-
      Member State for identical goods or services may be taken into          Tapia Rivas: APPEAL against the judgment of the Court of
      consideration by the competent authority of another Member              First Instance of the European Communities (Fourth Chamber)
      State among all the circumstances which that authority must             of 14 June 2001 in Case T-143/99 Hortiplant v Commission
      take into account in assessing the distinctive character of a trade     [2001] ECR II-1665, seeking to have that judgment set aside,
      mark, but it is not decisive regarding the latter’s decision to         the other party to the proceedings being: Commission of
      grant or refuse registration of a trade mark.                           the European Communities (Agents: L. Visaggio, assisted by
                                                                              J. Guerra Fernández) with an address for service in Luxem-
                                                                              bourg, the Court (Third Chamber), composed of: J. N. Cunha
      On the other hand, the fact that a trade mark has been                  Rodrigues, acting for the President of the Third Chamber, J.-
      registered in one Member State for certain goods or services can        P. Puissochet and F. Macken (Rapporteur), Judges; S. Alber,
      have no bearing on the examination by the competent trade               Advocate General; H. von Holstein, Deputy Registrar, has
      mark registration authority of another Member State of the              given a judgment on 12 February 2004, in which it:
      distinctive character of a similar trade mark for goods or services
      similar to those for which the first trade mark was registered.
                                                                              1.    Dismisses the appeal;
                                                                              2.    Orders Hortiplant to pay the costs.
(1 ) OJ C 227, 11.8.2001.
                                                                              (1) OJ C 303 of 27.10.2001.