CELEX: C2003/112/05
Language: en
Date: 2003-05-10 00:00:00
Title: Judgment of the Court of 11 March 2003 in Case C-40/01 (Reference for a preliminary ruling from the Hoge Raad der Nederlanden): Ansul BV v Ajax Brandbeveiliging BV (Trade marks — Directive 89/104/EEC — Article 12(1) — Revocation of trade mark owner's rights — Concept of genuine use of a trade mark — Maintenance of goods already sold and sales of replacement parts and accessories)

10.5.2003                EN                          Official Journal of the European Union                                                   C 112/3
                 JUDGMENT OF THE COURT                                                          JUDGMENT OF THE COURT
                                                                                                        of 11 March 2003
                          of 20 March 2003
                                                                             in Case C-40/01 (Reference for a preliminary ruling from
in Case C-291/00 (Reference for a preliminary ruling from                    the Hoge Raad der Nederlanden): Ansul BV v Ajax
the Tribunal de Grande Instance de Paris): LTJ Diffusion                                             Brandbeveiliging BV ( 1)
                  SA v Sadas Vertbaudet SA (1)
                                                                             (Trade marks — Directive 89/104/EEC — Article 12(1) —
                                                                             Revocation of trade mark owner’s rights — Concept of
(Trade marks — Approximation of laws — Directive 89/                         genuine use of a trade mark — Maintenance of goods already
104/EEC — Article 5(1)(a) — Notion of sign which is                                sold and sales of replacement parts and accessories)
identical with the trade mark — Use of the distinctive
element of the mark to the exclusion of other elements —
Use of all the elements making up the trade mark but with                                                 (2003/C 112/05)
                  the addition of other elements)
                                                                                                    (Language of the case: Dutch)
                           (2003/C 112/04)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                   in the European Court Reports)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published       In Case C-40/01: Reference to the Court under Article 234 EC
                    in the European Court Reports)                           by the Hoge Raad der Nederlanden (Netherlands) for a
                                                                             preliminary ruling in the proceedings pending before that
                                                                             court between Ansul BV and Ajax Brandbeveiliging BV, on the
                                                                             interpretation of Article 12(1) 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,
In Case C-291/00: Reference to the Court under Article 234                   p. 1), the Court, composed of: G. C. Rodríguez Iglesias,
EC by the Tribunal de grande instance de Paris (France) for a                President, J.-P. Puissochet (Rapporteur), M. Wathelet and
preliminary ruling in the proceedings pending before that                    C. W. A. Timmermans, Presidents of Chamber, C. Gulmann,
court between LTJ Diffusion SA and Sadas Vertbaudet SA, on                   A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric and
the interpretation of Article 5(1)(a) of First Council Directive             S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
89/104/EEC of 21 December 1988 to approximate the laws                       General; M.-F. Contet, Principal Administrator, for the Regis-
of the Member States relating to trade marks (OJ 1989 L 40,                  trar, has given a judgment on 11 March 2003, in which it has
p. 1), the Court, composed of: G. C. Rodríguez Iglesias,                     ruled:
President, M. Wathelet and R. Schintgen (Presidents of Cham-
bers), C. Gulmann, P. Jann, F. Macken (Rapporteur), N. Colner-
ic, S. von Bahr and J. N. Cunha Rodrigues, Judges; F. G. Jacobs,             1.     Article 12(1) of First Council Directive 89/104/EEC of
Advocate General; D. Louterman-Hubeau, Head of Division,                            21 December 1988 to approximate the laws of the Member
for the Registrar, has given a judgment on 20 March 2003, in                        States relating to trade marks must be interpreted as meaning
which it has ruled:                                                                 that there is ‘genuine use’ of a trade mark where the mark is
                                                                                    used in accordance with its essential function, which is to
                                                                                    guarantee the identity of the origin of the goods or services for
                                                                                    which it is registered, in order to create or preserve an outlet for
Article 5(1)(a) of First Council Directive 89/104/EEC of 21 Decem-                  those goods or services; genuine use does not include token use
ber 1988 to approximate the laws of the Member States relating to                   for the sole purpose of preserving the rights conferred by the
trade marks must be interpreted as meaning that a sign is identical                 mark. When assessing whether use of the trade mark is genuine,
with the trade mark where it reproduces, without any modification or                regard must be had to all the facts and circumstances relevant
addition, all the elements constituting the trade mark or where,                    to establishing whether the commercial exploitation of the mark
viewed as a whole, it contains differences so insignificant that they               is real, particularly whether such use is viewed as warranted in
may go unnoticed by an average consumer.                                            the economic sector concerned to maintain or create a share in
                                                                                    the market for the goods or services protected by the mark, the
                                                                                    nature of the goods or services at issue, the characteristics of the
( 1) OJ C 273 of 23.9.2000.
                                                                                    market and the scale and frequency of use of the mark. The fact
                                                                                    that a mark that is not used for goods newly available on the
                                                                                    market but for goods that were sold in the past does not mean
                                                                                    that its use is not genuine, if the proprietor makes actual use of
                                                                                    the same mark for component parts that are integral to the
 ---pagebreak--- C 112/4                    EN                            Official Journal of the European Union                                             10.5.2003
      make-up or structure of such goods, or for goods or services               2.    Orders the Federal Republic of Germany to pay the costs.
      directly connected with the goods previously sold and intended
      to meet the needs of customers of those goods.
                                                                                 (1 ) OJ C 161 of 2.6.2001.
2.    It is for the national court to draw the consequences for the
      resolution of the dispute before it of the interpretation of the
      Community law concept of ‘genuine use’ of the trade mark given
      in the reply to the first question referred for a preliminary ruling.
( 1) OJ C 95 of 24.3.2001.
                                                                                                  JUDGMENT OF THE COURT
                                                                                                         of 11 March 2003
                                                                                 in Case C-186/01 (Reference for a preliminary ruling from
                    JUDGMENT OF THE COURT                                        the Verwaltungsgericht Stuttgart): Alexander Dory v
                                                                                                 Federal Republic of Germany (1)
                            (Sixth Chamber)
                                                                                 (Inapplicability of Community law to compulsory military
                            of 20 March 2003                                     service — Equal treatment of men and women — Article 2
                                                                                 of Directive 76/207/EEC — Compulsory military service in
in Case C-135/01: Commission of the European Communi-                               Germany limited to men only — Directive not applicable)
             ties v Federal Republic of Germany (1)
                                                                                                           (2003/C 112/07)
(Failure of a Member State to fulfil obligations — Directive
98/56/EC — Marketing of propagating material of orna-
                                                                                                    (Language of the case: German)
mental plants — Failure to transpose within the prescribed
             period — Difficulties of interpretation)
                                                                                 (Provisional translation; the definitive translation will be published
                             (2003/C 112/06)                                                        in the European Court Reports)
                     (Language of the case: German)
                                                                                 In Case C-186/01: Reference to the Court under Article 234
(Provisional translation; the definitive translation will be published           EC by the Verwaltungsgericht Stuttgart (Germany) for a
                      in the European Court Reports)                             preliminary ruling in the proceedings pending before that
                                                                                 court between Alexander Dory and Federal Republic of
                                                                                 Germany, on the interpretation of Article 2 of Council
                                                                                 Directive 76/207/EEC of 9 February 1976 on the implemen-
In Case C-135/01, Commission of the European Communities                         tation of the principle of equal treatment for men and women
(Agent: G. Braun) v Federal Republic of Germany (Agents:                         as regards access to employment, vocational training and
W.-D. Plessing and B. Muttelsee-Schön): Application for a                        promotion, and working conditions (OJ 1976 L 39, p. 40),
declaration that, by failing within the prescribed period to                     and, more generally, on the compatibility with Community
adopt all the laws, regulations and administrative measures                      law of the limitation of compulsory military service in
necessary in order to transpose into national law Council                        Germany to men, the Court, composed of: G.C. Rodríguez
Directive 98/56/EC of 20 July 1998 on the marketing of                           Iglesias, President, J.-P. Puissochet (Rapporteur), M. Wathelet,
propagating material of ornamental plants (OJ 1998 L 226,                        R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
p. 16), the Federal Republic of Germany has failed to fulfil its                 bers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris,
obligations under the EC Treaty and that directive, the Court                    F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
(Sixth Chamber), composed of: J.-P. Puissochet, President of                     Judges; C. Stix-Hackl, Advocate General; H.A. Rühl, Principal
the Chamber, C. Gulmann and V. Skouris (Rapporteur),                             Administrator, for the Registrar, has given a judgment on
F. Macken and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed,                       11 March 2003, in which it has ruled:
Advocate General; R. Grass, Registrar, has given a judgment
on 20 March 2003, in which it has ruled:
                                                                                 Community law does not preclude compulsory military service being
1.    Declares that, by failing within the prescribed period to adopt            reserved to men.
      all the laws, regulations and administrative measures necessary
      to transpose into national law Council Directive 98/56/EC of
                                                                                 (1 ) OJ C 200 of 14.7.2001.
      20 July 1998 on the marketing of propagating material of
      ornamental plants, the Federal Republic of Germany has failed
      to fulfil its obligations under that directive;