CELEX: C1996/336/15
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT of 11 July 1996 in Joined Cases C-427/93, C-429/93 and C-436/93 (references for a preliminary ruling from the Sø- og Handelsret i København and from the Højesteret): Bristol-Myers Squibb and Others v. Paranova A/S (Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks - Article 36 of the EC Treaty - Repackaging of trade-marked products)

9 . 11 . 96            EN                   Official Journal of the European Communities                                 No C 336/7
               JUDGMENT OF THE COURT                                   No 2163/92 of 30 July 1992 on the levying of the additional
                        ( Sixth Chamber)                               amount provided for by Regulations ( EEC ) No 3429/80,
                                                                       ( EEC ) No 796/81 , and ( EEC ) No 1755/81 adopting
                          of 4 July 1996                               protective measures applicable to imports of preserved
in Case C-295/94 ( reference for a preliminary ruling                  cultivated mushrooms ( 2 ) the Court ( Sixth Chamber ),
from the Finanzgericht Hamburg ): Hüpeden & Co. KG v.                  composed of: C. N. Kakouris ( Rapporteur ), President of the
               Hauptzollamt Hamburg-Jonas ( 1 )                        Chamber, G. F. Mancini and J. L. Murray, Judges;
(Preserved cultivated mushrooms — Measures of market                   F. G. Jacobs, Advocate-General ; H. A. Rühl, Principal
                            management)                                Administrator, for the Registrar, gave a judgment on 4 July
                                                                       1996 , in which it ruled :
                           ( 96/C 336/ 13 )
                                                                       Article 1 of Commission Regulation (EEC) No 2163/92 of
                (Language of the case: German)                         30 July 1992 on the levying of the additional amount
                                                                       provided for by Regulations (EEC) No 3429/80, (EEC)
(Provisional translation; the definitive translation will be           No 796/81 , and (EEC) No 1755/81 adopting protective
          published in the European Court Reports)                     measures applicable to imports of preserved cultivated
                                                                       mushrooms is invalid as regards the level of the additional
In Case C-295/94 : reference to the Court pursuant to                  amount set.
Article 177 of the EC Treaty from the Finanzgericht
( Finance Court) Hamburg ( Germany ) for a preliminary                 í 1 ) OJ No C 370, 24 . 12 . 1994 .
ruling in the proceedings pending before that court between            ( 2 ) OJ No L 217, 1992 , p . 16 .
Hüpeden & Co . KG and Hauptzollamt Hamburg-Jonas —
on the validity of Council Regulation ( EEC ) No 1796/81 of
30 June 1981 on measures applicable to imports of
preserved cultivated mushrooms ( 2 ) — the Court ( Sixth
Chamber ), composed of: C. N. Kakouris ( Rapporteur ),
President of the Chamber, G. F. Mancini and J. L. Murray,
Judges; F. G. Jacobs, Advocate-General; H. A. Rühl ,                                  JUDGMENT OF THE COURT
Principal Administrator, for the Registrar, gave a judgment                                     of 11 July 1996
on 4 July 1996 , in which it ruled :                                   in Joined Cases C-427/93 , C-429/93 and C-436/93
                                                                       (references for a preliminary ruling from the S0- og
Article 2 (1 ) of Council Regulation (EEC) No 1796/81 of               Handelsret i Kobenhavn and from the Højesteret ):
30 June 1981 on measures applicable to imports of                           Bristol-Myers Squibb and Others v. Paranova A/S ( 1 )
preserved cultivated mushrooms is invalid as regards the               (Directive 89/104/EEC to approximate the laws of the
level of the additional amount set.                                    Member States relating to trade marks — Article 36 of the
                                                                            EC Treaty — Repackaging of trade-marked products)
(') OJ No C 370, 24 . 12 . 1994 .
( 2 ) OJ No L 183 , 1981 , p . 1 .                                                               ( 96/C 336/ 15 )
                                                                                       (Language of the case: Danish)
                                                                       (Provisional translation; the definitive translation will be
               JUDGMENT OF THE COURT                                             published in the European Court Reports)
                        ( Sixth Chamber )
                                                                       In Joined Cases C-427/93 , C-429/93 and C-436/93 :
                          of 4 July 1996                               references to the Court pursuant to Article 177 of the EC
in Case C-296/94 ( reference for a preliminary ruling                  Treaty by the So- og Handelsret i Kobenhavn ( Maritime and
from the Finanzgericht Hamburg ): Bernhard Pietsch v.                  Commercial Court of Copenhagen ) ( in Cases C-427/93 and
            Hauptzollamt Hamburg-Waltershof ( 1 )                      C-429/93 ) and the Højesteret ( Supreme Court ) ( in Case
        (Preserved mushrooms — Protective measures)                    C-436/93 ) for a preliminary ruling in the proceedings
                                                                       pending before those courts between Bristol-Myers Squibb
                           ( 96/C 336/14 )
                                                                       and Paranova A/S ( C-427/93 ), and between C. H.
                                                                       Boehringer Sohn, Boehringer Ingelheim KG, Boehringer
                (Language of the case: German)                         Ingelheim A/S and Paranova A/S ( C-429/93 ), and between
                                                                       Bayer Aktiengesellschaft, Bayer Danmark A/S and Paranova
(Provisional translation; the definitive translation will be           A/S ( C-436/93 ), on the interpretation of Article 7 of the first
          published in the European Court Reports)                     Council Directive ( 89/104/EEC ) of 21 December 1988 to
                                                                       approximate the laws of the Member States relating to trade
In Case C-296/94 : reference to the Court pursuant to                  marks ( 2 ), and of Article 36 of the EC Treaty, the Court,
Article 177 of the EC Treaty from the Finanzgericht                    composed of: G. C. Rodriguez Iglesias, President, C. N.
( Finance Court ) Hamburg ( Germany ) for a preliminary                Kakouris, J. -P. Puissochet and G. Hirsch ( Presidents of
ruling in the proceedings pending before that court between            Chambers ), G. F. Mancini, J. C. Moitinho de Almeida, C.
Bernhard Pietsch and Hauptzollamt Hamburg-Waltershof                   Gulmann ( Rapporteur ), P. Jann and H. Ragnemalm, Judges,
— on the validity of Commission Regulation ( EEC )                     Advocate-General, F. G. Jacobs, for the Registrar : H. von
 ---pagebreak--- No C 336/8           EN                   Official Journal of the European Communities                                     9 . 11 . 96
Holstein, Deputy Registrar, L. Hewlett, Administrator, has                    the product inside the packaging is not indirectly
given a judgment on 11 July 1996 in which it rules :                          affected, for example, by the fact that the external or
                                                                              inner packaging of the repackaged product or new
                                                                              user instructions or information omits certain
1 . The reliance by a trade mark owner on his rights as                       important information or gives inaccurate
    owner in order to prevent an importer from marketing a                    information, or the fact that an extra article inserted
    product which was put on the market in another                            in the packaging by the importer and designed for
    Member State by the owner or with his consent where                       the ingestion and dosage of the product does not
    that importer has repackaged the product and reaffixed                    comply with the method of use and the doses
    the trade mark without the owner 's authorization, is to                  envisaged by the manufacturer,
    be assessed on the basis of the combined provisions of
    national trade mark law and Article 7 of the first                     — the new packaging clearly states who repackaged the
    Council Directive (89/104/EEC) of 21 December 1988                        product and the name of the manufacturer in print
    to approximate the laws of the Member States relating                     such that a person with normal eyesight, exercising a
    to trade marks, interpreted in the light of Article 36 of                 normal degree of attentiveness, would be in a
    the EC Treaty.                                                            position to understand; similarly, the origin of an
                                                                              extra article from a source other than the trade-mark
2 . Save in the circumstances defined in Article 7 (2),                       owner must be indicated in such a way as to dispel
                                                                              any impression that the trade-mark owner is
    Article 7 (1 ) of Directive 89/104/EEC precludes the
    owner of a trade mark from relying on his rights as                       responsible for it; however, it is not necessary to
    owner to prevent an importer from marketing a product                     indicate that the repackaging was carried out
    which was put on the market in another Member State                       without the authorization of the trade-mark
                                                                              owner,
    by the owner or with his consent, even if that importer
    repackaged the product and reaffixed the trade mark to
    it without the owner 's authorization .                                — the presentation of the repackaged product is not
                                                                              such as to be liable to damage the reputation of the
                                                                              trade mark and of its owner; thus, the packaging
3 . Article 7 (2) of Directive 89/104/EEC must be                             must not be defective, of poor quality, or untidy;
    interpreted as meaning that the trade mark owner may                      and
    legitimately oppose the further marketing of a
    pharmaceutical product where the importer has                          — the importer gives notice to the trade-mark owner
    repackaged the product and reaffixed the trade mark                        before the repackaged product is put on sale, and, on
    unless :                                                                  demand, supplies him with a specimen of the
                                                                               repackaged product.
    — its is established that reliance on trade mark rights by
        the owner in order to oppose the marketing of                (>) OJ No C 338 , 15 . 12 . 1993 .
        repackaged particulars under that trade mark would           ( 2 ) OJ No L 40, 1989 , p . 1 .
        contribute to the artificial partitioning of the
        markets between Member States; such is the case, in
        particular, where the owner has put an identical
        pharmaceutical product on the market in several
        Member States in various forms of packaging, and
        the repackaging carried out by the importer is                              JUDGMENT OF THE COURT
        necessary in order to market the product in the                                       of 11 July 1996
        Member State of importation, and is carried out in
        such conditions that the original condition of the           in Case C-39/94 ( reference for a preliminary ruling from the
        product cannot be affected by it; that condition does        Tribunal de Commerce, Paris ): Syndicat fran^ais de
        not, however, imply that it must be established that         l'Express International ( SFEI ) and Others v. La Poste and
        the trade mark owner deliberately sought to                                                Others ( 1 )
        partition the markets between Member States,                  (State aid —Jurisdiction ofnational courts when the matter
                                                                     is also pending before the Commission — Definition ofState
    — it is shown that the repackaging cannot affect the             aid — Consequences ofinfringement of the last sentence of
        original condition of the product inside the                                 Article 93 (3) of the EC Treaty)
        packaging; such is the case, in particular, where the                                  ( 96/C 336/16 )
        importer has merely carried out operations involving
         no risk of the product being affected, such as, for                          (Language of the case: French)
        example, the removal of blister packs, flasks, phials,
        ampoules or inhalers from their original external
        packaging and their replacement in new external               (Provisional translation; the definitive translation will be
        packaging, the fixing of self-stick labels on the inner                 published in the European Court Reports)
        packaging of the product, the addition to the
        packaging of new user instructions or information,            In Case C-39/94 : reference to the Court pursuant to
         or the insertion of an extra article; it is for the          Article 177 of the EC Treaty by the Tribunal de Commerce,
         national court to verify that the original condition of      Paris, for a preliminary ruling in the proceedings pending