CELEX: C2003/101/26
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-7/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 18 December 2002, in the case of Société de produits Nestlé SA against Unilever plc

26.4.2003               EN                        Official Journal of the European Union                                             C 101/15
       b)   Under the Community law principle of pro-                            of a particular trader is that sufficient of itself to prove
            portionality, is the discretion to be exercised in                   that the shape has acquired a distinctive character within
            assessing the impact of overlaying waste that has                    the meaning of Art 3(3) of the Directive?
            not been treated prior to landfill with waste treated
            by thermal or mechanical and biological processes             3.     If that is insufficient, must it also be proved that the shape
            prior to landfill wide or narrow? Does the principle                 is used and relied upon by the relevant public as a
            of proportionality permit hazards caused by waste                    guarantee of trade origin?
            treated prior to landfill by mechanical processes
            alone to be offset by other safeguards?                       4.     If the preponderance of the public recognise a shape
                                                                                 mark as the product of one trader but a significant
                                                                                 minority also regard other shapes in use by other traders
( 1) OJ L 182 of 16.7.1999, p. 1 (Council Directive 1999/31/EC of                as the shape applied for, has the shape mark acquired a
     26 April 1999 on the landfill of waste).                                    ‘distinctive character’ within the meaning of Art 3(3) of
                                                                                 the Directive?
                                                                          (1 ) First Council Directive 89/104/EEC of 21 December 1988 to
                                                                               approximate the laws of the Member States relating to trade
                                                                               marks (OJ L 40 11.2.1989, p. 1).
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 18 December 2002, in the case of
      Société de produits Nestlé SA against Unilever plc
                                                                          Reference for a preliminary ruling by the Oberlandesge-
                            (Case C-7/03)                                 richt Naumburg by order of that Court of 8 January 2003
                                                                          in the procurement review proceedings, Parties to the
                          (2003/C 101/26)                                 proceedings being 1. The City of Halle, 2. RPL Recy-
                                                                          clingpark Lochau GmbH and 3. The Thermische
                                                                          Restabfall- und Energieverwertungsanlage TREA Leuna
                                                                                                        consortium
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                                                  (Case C-26/03)
Justice (England & Wales), Chancery Division, dated 18 Decem-
ber 2002, which was received at the Court Registry on
                                                                                                      (2003/C 101/27)
9 January 2003, for a preliminary ruling in the case of Société
de produits Nestlé SA and Unilever plc on the following
questions:
                                                                          Reference has been made to the Court of Justice of the
1.     When considering signs which consist of the shape of               European Communities by order of the Oberlandesgericht
       goods, what is meant by ‘the nature of the goods                   Naumburg (Higher Regional Court, Naumburg) of 8 January
       themselves’ in Art 3(1)(e) of the Trade Marks Directive            2003, received at the Court Registry on 23 January 2003, for
       89/104 ( 1)? and in particular does that nature arise from:        a preliminary ruling in the procurement review proceedings,
                                                                          Parties to the proceedings being 1. The City of Halle, 2. RPL
       (a)  the specification of goods for which the trade mark           Recyclingpark Lochau GmbH and 3. The Thermische
            is registered (or applied for);                               Restabfall- und Energieverwertungsanlage TREA Leuna consor-
                                                                          tium, on the following questions:
       (b) the kind of goods for which the mark is used
            regarded as articles of commerce;                             I.     1.    Does the first sentence of Article 1(1) of Council
                                                                                       Directive 89/665/EEC of 21 December 1989 on the
                                                                                       coordination of the laws, regulations and adminis-
       (c)  only the inherent nature of non-man made articles;
                                                                                       trative provisions relating to the application of
            or
                                                                                       review procedures to the award of public supply and
                                                                                       public works contracts ( 1), as replaced by Article 41
       (d) the shape of the goods which makes the product                              of Council Directive 92/50/EEC of 18 June 1992
            different in appearance from similar competitive                           relating to the coordination of procedures for the
            products;                                                                  award of public service contracts ( 2), require Member
                                                                                       States to ensure that a decision taken by a con-
       (e)  something else, and if so what?                                            tracting authority to award a public contract other-
                                                                                       wise than by means of a procedure which complies
2.     Where the shape of a product which has been on the                              with the directives relating to the award of public
       market is merely shown to be recognised by a substantial                        contracts may be reviewed effectively and as rapidly
       proportion of the relevant public as denoting the goods                         as possible?