LTJ Diffusion SA v Sadas Vertbaudet SA.
Date: 2003-03-20
38.  As a preliminary point, it must be recalled that, in order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (see Case 35/85   Tissier   [1986] ECR 1207, paragraph 9, and Case C-107/98   Teckal   [1999] ECR I-8121, paragraph 39).
41.  The conditions of application of Article 4(1)(a) of the directive correspond essentially to those of Article 5(1)(a) of the directive, which determines the circumstances in which the proprietor of a trade mark is entitled to prevent third parties from using signs which are identical with his trade mark.  There is a similar correspondence between Articles 8(1)(a) and 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).
43.  Accordingly, the question submitted will be examined below in the light solely of Article 5(1)(a) of the directive, but the interpretation adopted following that examination will also apply to Article 4(1)(a) of the directive since that interpretation will be transposable,   mutatis mutandis  , to the latter provision.
44.  On the substance of the case, it is settled case-law that the essential function of a trade mark is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin (see Case 3/78   Centrafarm   [1978] ECR 1823, paragraphs 11 and 12; Case C-379/97   Upjohn   [1999] ECR I-6927, paragraph 21, and Case C-206/01Arsenal Football Club   [2002] ECR I-10273, paragraph 48).
45.  The Community legislature confirmed that essential function of trade marks by providing, in Article 2 of the Directive, that signs which are capable of being represented graphically may constitute a trade mark only if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings (see, in particular, Case C-517/99   Merz  & Krell   [2001] ECR I-6959, paragraph 23, and   Arsenal Football Club  , cited above, paragraph 49).
46.  For that guarantee of origin to be ensured, the proprietor must be protected against competitors wishing to take unfair advantage of the status and reputation of the trade mark by selling products illegally bearing it (see  Case C-349/95   Loendersloot   [1997] ECR I-6227, paragraph 22, and   Arsenal Football Club  , paragraph 50).
47.  Protection for the proprietor of a trade mark is guaranteed by Article 5 of the directive, which determines the rights conferred by a registered trade mark and provides, in paragraph (1), that that mark is to confer on the proprietor exclusive rights therein and that the proprietor is to be entitled, within certain limits, to prevent all third parties from using his trade mark in the course of trade (see, to that effect, Case C-337/95   Parfums Christian Dior   [1997] ECR I-6013, paragraph 34).
48.  As regards Article 5(1)(b) of the directive, the Court has already held that that provision is designed to apply only if, because of the identity or similarity between the signs and marks and between the goods or services which they designate, there exists a likelihood of confusion on the part of the public (see, to that effect, Case C-425/98   Marca Mode  [2000] ECR I-4861, paragraph 34).
49.  On the other hand, Article 5(1)(a) of the directive does not require evidence of such a likelihood in order to afford absolute protection in the case of identity of the sign and the trade mark and of the goods or services.
52.  However, the perception of identity between the sign and the trade mark must be assessed globally with respect to an average consumer who is deemed to be reasonably well informed, reasonably observant and circumspect.  The sign produces an overall impression on such a consumer.  That consumer only rarely has the chance to make a direct comparison between signs and trade marks and must place his trust in the imperfect picture of them that he has kept in his mind.  Moreover, his level of attention is likely to vary according to the category of goods or services in question (see, to that effect, Case C-342/97   Lloyd Schuhfabrik Meyer  [1999] ECR I-3819, paragraph 26).
54.  In those circumstances, the answer to the question referred must be that Article 5(1)(a) of the directive must be interpreted as meaning that a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.