CELEX: C2002/191/01
Language: en
Date: 2002-08-10 00:00:00
Title: Judgment of the Court of 18 June 2002 in Case C-299/99 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Koninklĳke Philips Electronics NV v Remington Consumer Products Ltd (Approximation of laws — Trade marks — Directive 89/104/EEC — Articles 3(1) and (3), 5(1) and 6(1)(b) — Signs capable of being trade marks — Signs consisting exclusively of the shape of the product)

10.8.2002             EN                          Official Journal of the European Communities                                           C 191/1
                                                                      I
                                                                (Information)
                                                  COURT OF JUSTICE
                                                            COURT OF JUSTICE
               JUDGMENT OF THE COURT                                      D. Ruiz-Jarabo Colomer, Advocate General; D. Louterman-
                                                                          Hubeau, Head of Division, for the Registrar, has given a
                                                                          judgment on 18 June 2002, in which it has ruled:
                        of 18 June 2002
in Case C-299/99 (Reference for a preliminary ruling from                 1.  There is no category of marks which is not excluded from
the Court of Appeal (England & Wales) (Civil Division):                       registration by Article 3(1)(b), (c) and (d) and Article 3(3) of
Koninklijke Philips Electronics NV v Remington Con-                           First Council Directive 89/104/EEC of 21 December 1988 to
                    sumer Products Ltd (1)                                    approximate the laws of the Member States relating to trade
                                                                              marks which is none the less excluded from registration by
                                                                              Article 3(1)(a) thereof on the ground that such marks are
                                                                              incapable of distinguishing the goods of the proprietor of the
(Approximation of laws — Trade marks — Directive 89/                          mark from those of other undertakings.
104/EEC — Articles 3(1) and (3), 5(1) and 6(1)(b) — Signs
capable of being trade marks — Signs consisting exclusively
                  of the shape of the product)
                                                                          2.  In order to be capable of distinguishing an article for the
                                                                              purposes of Article 2 of the Directive, the shape of the article in
                        (2002/C 191/01)                                       respect of which the sign is registered does not require any
                                                                              capricious addition, such as an embellishment which has no
                                                                              functional purpose.
                  (Language of the case: English)
                                                                          3.  Where a trader has been the only supplier of particular goods
                                                                              to the market, extensive use of a sign which consists of the
                                                                              shape of those goods may be sufficient to give the sign a
                                                                              distinctive character for the purposes of Article 3(3) of Directive
In Case C-299/99: Reference to the Court under Article 234                    89/104 in circumstances where, as a result of that use, a
EC by the Court of Appeal (England and Wales) (Civil Division)                substantial proportion of the relevant class of persons associates
(United Kingdom) for a preliminary ruling in the proceedings                  that shape with that trader and no other undertaking or believes
pending before that court between Koninklijke Philips Elec-                   that goods of that shape come from that trader. However, it is
tronics NV and Remington Consumer Products Ltd, on the                        for the national court to verify that the circumstances in which
interpretation of Articles 3(1) and (3), 5(1) and 6(1)(b) of First            the requirement under that provision is satisfied are shown to
Council Directive 89/104/EEC of 21 December 1988 to                           exist on the basis of specific and reliable data, that the presumed
approximate the laws of the Member States relating to trade                   expectations of an average consumer of the category of goods or
marks (OJ 1989 L 40, p. 1), the Court, composed of:                           services in question, who is reasonably well-informed and
G.C. Rodrı́guez Iglesias, President, P. Jann, F. Macken (Rappor-              reasonably observant and circumspect, are taken into account
teur), N. Colneric and S. von Bahr (Presidents of Chambers),                  and that the identification, by the relevant class of persons, of
C. Gulmann, D.A.O. Edward, A. La Pergola, J.-P. Puissochet,                   the product as originating from a given undertaking is as a
J.N. Cunha Rodrigues and C.W.A. Timmermans, Judges;                           result of the use of the mark as a trade mark.
 ---pagebreak--- C 191/2                EN                       Official Journal of the European Communities                                           10.8.2002
4.   Article 3(1)(e), second indent, of Directive 89/104 must be           milk and milk products sector (OJ 1992 L 405, p. 1), as
     interpreted to mean that a sign consisting exclusively of the         amended by Council Regulation (EEC) No 1560/93 of 14 June
     shape of a product is unregistrable by virtue thereof if it is        1993 (OJ 1993 L 154, p. 30), the Court (Sixth Chamber),
     established that the essential functional features of that shape      composed of: N. Colneric, President of the Second Chamber,
     are attributable only to the technical result. Moreover, the          acting for the President of the Sixth Chamber, C. Gulmann and
     ground for refusal or invalidity of registration imposed by that      V. Skouris (Rapporteur), Judges; L.A. Geelhoed, Advocate
     provision cannot be overcome by establishing that there are           General; H.A. Rühl, Principal Administrator, for the Registrar,
     other shapes which allow the same technical result to be              has given a judgment on 20 June 2002, in which it has ruled:
     obtained.
(1) OJ C 299 of 16.10.1999.                                                1.   When Member States determine, pursuant to the first subpara-
                                                                                graph of Article 7(1) of Council Regulation (EEC) No 3950/
                                                                                92 of 28 December 1992 establishing an additional levy in
                                                                                the milk and milk products sector, as amended by Council
                                                                                Regulation (EEC) No 1506/93 of 14 June 1993, the detailed
                                                                                rules under which the reference quantity attached to a holding
                                                                                is to be transferred upon the sale or lease of the holding, they
                                                                                may provide, pursuant to that provision, that part of the
                                                                                reference quantity is not to be transferred with the holding to
                                                                                the producer taking it over but is to be added to the national
                                                                                reserve by means of a ‘clawback’ mechanism. Such a measure
                                                                                must be adopted and applied:
                JUDGMENT OF THE COURT
                                                                                —     in a way which does not compromise the objectives of the
                        (Sixth Chamber)                                               common agricultural policy and in particular those of the
                                                                                      common organisation of the markets in the milk sector;
                         of 20 June 2002
                                                                                —     on the basis of objective criteria, and
in Case C-313/99 (Reference for a preliminary ruling from
the High Court): Gerard Mulligan, Tim O’Sullivan, Tom                           —     in accordance with the general principles of Community
Power, Hugh Duncan v Minister for Agriculture and                                     law such as, in particular, the principles of legal certainty
              Food, Ireland, Attorney General (1)                                     and protection of legitimate expectations, proportionality,
                                                                                      non-discrimination and respect for fundamental rights.
(Additional levy in the milk and milk products sector —
Regulation (EEC) No 3950/92 — Transfer of the reference
                                                                           2.   The principle of legal certainty does not preclude, as a general
quantity on sale or lease of the holding — Whether a                            principle of Community law, a Member State from choosing,
Member State may claw back part of the reference quantity
                                                                                for the purpose of adopting national measures pursuant to
               and add it to the national reserve)
                                                                                Article 7(1) of Regulation No 3950/92, a procedure whereby
                                                                                a legislative instrument authorises the competent authority,
                                                                                such as a minister, to adopt those measures by means of a
                         (2002/C 191/02)                                        decision. That principle requires that the publicity for such
                                                                                measures be of such a nature as to inform the natural or legal
                                                                                persons concerned by the measures of their rights and obligations
                                                                                under them. It is for the national court to determine, on the
                  (Language of the case: English)
                                                                                basis of the facts before it, whether that is the case in the main
                                                                                proceedings.
In Case C-313/99: Reference to the Court under Article 234
                                                                           (1) OJ C 299 of 16.10.1999.
EC by the High Court (Ireland) for a preliminary ruling in
the proceedings pending before that court between Gerard
Mulligan, Tim O’Sullivan, Tom Power, Hugh Duncan and
Minister for Agriculture and Food, Ireland, Attorney General,
on the interpretation of Council Regulation (EEC) No 3950/92
of 28 December 1992 establishing an additional levy in the