CELEX: C2004/085/03
Language: en
Date: 2004-04-03 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-265/00 (Reference for a preliminary ruling from the Cour de justice Benelux): Campina Melkunie BV v Benelux-Merkenbureau (Approximation of laws — Trade marks — Directive 89/104/EEC — Article 3(1) — Ground for refusal to register — Neologism composed of elements each of which is descriptive of characteristics of the goods or services concerned)

3.4.2004                EN                          Official Journal of the European Union                                                   C 85/3
—     by failing to adopt legislation ensuring the free movement                              JUDGMENT OF THE COURT
      of foodstuffs for daily consumption and foodstuffs intend-
      ed for particular nutritional uses, which are lawfully
      manufactured and/or marketed in other Member States                                             (Sixth Chamber)
      but contain additives (such as vitamins, minerals and
      other ingredients) not provided for under French legis-
      lation;
                                                                                                    of 12 February 2004
—     by failing to provide for a simplified procedure for having
      a substance included on the national list of authorised               in Case C-265/00 (Reference for a preliminary ruling from
      additives, which is necessary if the above foodstuffs are             the Cour de justice Benelux): Campina Melkunie BV v
      to be marketed in France;                                                                 Benelux-Merkenbureau (1)
—     by hindering the marketing in France of the above                     (Approximation of laws — Trade marks — Directive 89/
      foodstuffs without establishing that their marketing poses            104/EEC — Article 3(1) — Ground for refusal to register
      a risk to public health,                                              — Neologism composed of elements each of which is
                                                                            descriptive of characteristics of the goods or services con-
                                                                                                            cerned)
the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris,                                                (2004/C 85/03)
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein,                                     (Language of the case: Dutch)
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:
                                                                            (Provisional translation; the definitive translation will be published
                                                                                                in the European Court Reports)
1.    Declares that, by failing to provide for a simplified procedure
      for having included on the national list of authorised nutrients
      those added to foodstuffs for daily consumption and foodstuffs
      intended for particular nutritional uses which are lawfully
      manufactured and/or marketed in other Member States,                  In Case C-265/00: Reference to the Court under Article 234
                                                                            EC by the Benelux-Gerechtshof for a preliminary ruling in the
                                                                            proceedings pending before that court between Campina
      and
                                                                            Melkunie BV and Benelux-Merkenbureau, on the interpretation
                                                                            of Articles 2 and 3(1) of First Council Directive 89/104/EEC of
      by hindering the marketing in France of certain foodstuffs, such      21 December 1988 to approximate the laws of the Member
      as food supplements and dietary products containing the               States relating to trade marks (OJ 1989 L 40, p. 1), the Court
      substances L-tartrate and L-carnitine, and confectionery and          (Sixth Chamber), composed of: V. Skouris, acting for the
      drinks to which certain nutrients have been added, without            President of the Sixth Chamber, C. Gulmann, J. N. Cunha
      establishing that the marketing of such foodstuffs entails a real     Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
      risk for public health,                                               D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
                                                                            Deputy Registrar, has given a judgment on 12 February 2004,
      the French Republic has failed to fulfil its obligations under        in which it has ruled:
      Article 30 of the EC Treaty (now, after amendment, Article 28
      EC);
                                                                            Article 3(1)(c) of First Council Directive 89/104/EEC of 21 Decem-
                                                                            ber 1988 to approximate the laws of the Member States relating to
2.    Dismisses the remainder of the application; Orders the Com-           trade marks must be interpreted as meaning that a trade mark
      mission of the European Communities and the French Republic           consisting of a neologism composed of elements, each of which is
      to pay their own costs.                                               descriptive of characteristics of the goods or services in respect of
                                                                            which registration is sought, is itself descriptive of the characteristics
                                                                            of those goods or services for the purposes of that provision, unless
                                                                            there is a perceptible difference between the neologism and the mere
                                                                            sum of its parts: that assumes that, because of the unusual nature of
(1) OJ C 149 of 27.5.2000.
                                                                            the combination in relation to the goods or services, the word creates
                                                                            an impression which is sufficiently far removed from that produced
                                                                            by the mere combination of meanings lent by the elements of which
                                                                            it is composed, with the result that the word is more than the sum of
                                                                            its parts.
 ---pagebreak--- C 85/4                   EN                          Official Journal of the European Union                                              3.4.2004
For the purposes of determining whether the ground for refusal set           First, the prior authorisation procedure must be readily accessible and
out in Article 3(1)(c) of Directive 89/104 applies to such a mark, it        capable of being completed within a reasonable time and, if it leads
is irrelevant whether or not there are synonyms capable of designating       to a refusal, the decision of refusal must be open to challenge before
the same characteristics of the goods or services referred to in the         the courts. Secondly, refusal to authorise marketing must be based on
application for registration.                                                a detailed assessment of the risk to public health, based on the most
                                                                             reliable scientific data available and the most recent results of
                                                                             international research.
(1) OJ C 233 of 12.8.2000.
                                                                             (1) OJ C 108 of 7.4.2001.
                  JUDGMENT OF THE COURT
                           (Sixth Chamber)
                                                                                               JUDGMENT OF THE COURT
                         of 5 February 2004
                                                                                                       (Sixth Chamber)
in Case C-95/01 (Reference for a preliminary ruling from
the tribunal de grande instance de Paris): John Greenham                                             of 12 February 2004
                          v Léonard Abel (1)
                                                                             in Case C-218/01 (Reference for a preliminary ruling from
(Free movement of goods — Articles 28 EC and 30 EC —                            the Bundespatentgericht (Germany): Henkel KGaA (1)
Prohibition on marketing foodstuffs to which vitamins and
minerals have been added — Justification — Proportionality)
                                                                             (Approximation of laws — Trade marks — Directive 89/
                            (2004/C 85/04)                                   104/EEC — Article 3(1)(b), (c) and (e) — Grounds for
                                                                             refusal to register — Three-dimensional shape-of-product
                                                                                                mark — Distinctive character
                     (Language of the case: French)
                                                                                                         (2004/C 85/05)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                                                 (Language of the case: German)
In Case C-95/01: Reference to the Court under Article 234 EC                 (Provisional translation; the definitive translation will be published
by the Tribunal de grande instance de Paris (France) for a                                       in the European Court Reports)
preliminary ruling in the criminal proceedings pending before
that court against John Greenham and Léonard Abel, on the
interpretation of Articles 28 EC and 30 EC, the Court (Sixth
Chamber), composed of: V. Skouris, acting for the President of
the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken                   In Case C-218/01: reference to the Court under Article 234
(Rapporteur) and N. Colneric, Judges; J. Mischo, Advocate                    EC by the Bundespatentgericht (Germany) for a preliminary
General; H. von Holstein, Deputy Registrar, has given a                      ruling in the proceedings brought before that court by Henkel
judgment on 5 February 2004, in which it has ruled:                          KGaA, on the interpretation of Article 3(1)(b), (c) and (e) of
                                                                             First Council Directive 89/104/EEC of 21 December 1988 to
                                                                             approximate the laws of the Member States relating to trade
Articles 28 EC and 30 EC must be interpreted as meaning that they            marks (OJ 1989 L 40, p. 1), the Court (Sixth Chamber),
do not preclude a Member State from prohibiting the marketing                composed of C. Gulmann, acting for the President of the
without prior authorisation of foodstuffs lawfully manufactured and          Chamber, J. N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen
marketed in another Member State, where nutrients such as vitamins           and F. Macken (Rapporteur), Judges; Advocate General:
or minerals have been added thereto other than those whose use has           D. Ruíz-Jarabo Colomer, Registrar: L. Hewlett, Principal
been declared lawful in the first Member State, provided that certain        Administrator, has given a judgment on 12 February 2004, in
conditions are satisfied.                                                    which it ruled: