CELEX: C1997/387/19
Language: en
Date: 1997-12-20 00:00:00
Title: Reference for a preliminary ruling by the Sø- og Handelsret by order of that court of 31 October 1997 in the case of Upjohn SA, Danmark v. Paranova A/S (Case C-379/97)

C 387/ 12                 EN                   Official Journal of the European Communities                                  20 . 12 . 97
Reference for a preliminary ruling by the So- og                          Reference for a preliminary ruling by the President of the
Handelsret by order of that court of 31 October 1997 in                   Arrondissementsrechtbank, The Hague, by order of
         the case of Upjohn SA, Danmark v. Paranova A/S                   4 November 1997 in the case of Emesa Sugar ( Free
                            Case C-3 79/97                                Zone ) NV and 1 . Kingdom of the Netherlands, 2 . The
                                                                          Netherlands State, 3 . The Netherlands Antilles and
                             ( 97/C 387/19 )                                                           4 . Aruba
                                                                                                   Case C-380/97 )
Reference has been made to the Court of Justice of the                                              ( 97/C 387/20 )
European Communities by order of the So- og Handelsret
( Maritime and Commercial Court ) of 31 October 1997,
which was received at the Court Registry on 6 November
1997, for a preliminary ruling in the case of Upjohn SA,                  Reference has been made to the Court of Justice of the
Danmark v. Paranova A/S on the following questions:                       European Communities by interlocutory judgment of the
                                                                          President of the Arrondissementsrechtbank, The Hague, of
                                                                          4 November 1997, received at the Court Registry on
1 . Do Article 7 of Council Directive 89/104/EEC (') of                   6 November 1997, for a preliminary ruling in the case of
        21 December 1988 to approximate the laws of the                   Emesa Sugar ( Free Zone ) NV and 1 . Kingdom of the
        Member States relating to trade marks and/or                      Netherlands, 2 . The Netherlands State , 3 . The
        Articles 30 and 36 of the EC Treaty preclude the                  Netherlands Antilles and 4 . Aruba on the following
        proprietor of a trade mark from relying on its right              questions:
        under    national  trade-mark     law   as  the   basis  for
        opposing a third party's purchasing a pharmaceutical
        product in a Member State, repackaging it in that
        third party's own packaging, to which it affixes trade            1 . Is it compatible with the EC Treaty, in particular
                                                                              Part IV thereof, for provisions such as those referred
        mark X belonging to the trade-mark proprietor, and
                                                                              to in the second paragraph of Article 136 of the
        marketing the product in another Member State, in
        the case where the pharmaceutical product in question
                                                                              Treaty to include quantitative restrictions on imports
                                                                              or measures having equivalent effect ?
        is marketed by the trade-mark proprietor or with its
        consent in the Member State of purchase under trade
        mark Y and an identical pharmaceutical product is
        marketed by the trade-mark proprietor or with its                 2 . Is the answer to that question different
        consent in the abovementioned second Member State
        under trade mark X ?
                                                                              a.   if those restrictions or measures are in the form of
                                                                                   tariff quotas or limitations to the provisions
2 . Does it have any bearing on the reply to Question 1                            relating to origin or a combination of the two; or
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        b . if the provisions in question comprise safeguard
        importer sells the product is attributable to subjective                   measures or not ?
        circumstances particular to the trade-mark proprietor ?
        If the answer is yes, is the importer required to adduce
        evidence that the use of different trade marks is or was
        intended artificially to partition the markets ( reference        3 . Does it follow from the EC Treaty, in particular
        is made in this connection to the Court's judgment of                 Part IV thereof, that for the purposes of the second
        10    October   1978       in Case   3/78   Centrafarm    v.          paragraph of Article 136, the experience acquired —
        American Home Products Corporation ( 2 ))?                            in the form of measures favourable to the OCT —
                                                                              may not subsequently be reviewed or annulled to the
                                                                              detriment of the OCT ?
3 . Does it have any bearing on the reply to question 1
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        If that is indeed the case, can individuals then rely on
        importer sells the product is attributable to objective               it in proceedings before the national court ?
        circumstances outwith the control of the trade-mark
        proprietor, including, in particular, requirements of
        national health authorities or the trade-mark rights of           4 . To what extent-must the 1991 OCT Decision ( 91 /482/
        third parties ?                                                       EEC, OJ L 263 , 19 . 9 . 1991 , p. 1 ; corrigendum in OJ
                                                                              L 15 , 23 . 1 . 1993 , p. 33 ) be deemed to apply without
(') OJ L 40 , 11 . 2 . 1989 , p . 1 .                                         amendment during the 10 year period referred to in
( 2 ) [ 1978 ] ECR 1823 .                                                     Article 240 ( 1 ) thereof, given that the Council did not
                                                                              amend that decision before the expiry of the first
                                                                              ( period of) 5 years referred to in Article 240 ( 3 )
                                                                              thereof ?