Verband Sozialer Wettbewerb eV v Clinique Laboratoires SNC and Estée Lauder Cosmetics GmbH.
Date: 1994-02-02
7 It should be noted at the outset that the Court, which is competent under Article 177 of the Treaty to provide courts of the Member States with all the elements of interpretation of Community law, may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (judgment in Case C-241/89 SARPP v Chambre Syndicale des Raffineurs et Conditionneurs de Sucre de France [1990] ECR I-4695, paragraph 8). It is therefore necessary to determine which provisions of Community law are applicable to the main proceedings in this case before examining whether those provisions preclude the use of the name "Clinique" in the circumstances described by the national court.
9 Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (Official Journal 1984 L 250, p. 17) is designed to protect consumers, competitors and the public in general against misleading advertising and the unfair consequences thereof.
10 As the Court has already held, that directive confines itself to a partial harmonization of the national laws on misleading advertising by establishing minimum objective criteria for determining whether advertising is misleading and minimum requirements for the means of affording protection against such advertising (judgment in Case C-238/89 Pall Corp. v P.J. Dahlhausen [1990] ECR I-4827, paragraph 22).
11 Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (Official Journal 1976 L 262, p. 169), on the other hand, has, as already held by the Court, provided exhaustively for the harmonization of national rules on the packaging and labelling of cosmetic products (judgment in Case C-150/88 Parfuemerie-Fabrik 4711 v Provide [1989] ECR 3891, paragraph 28).
12 As the Commission has correctly pointed out, however, that directive must, like all secondary legislation, be interpreted in the light of the Treaty rules on the free movement of goods (see, in particular, the judgment in Case C-47/90 Delhaize and Le Lion v Promalvin and AGE Bodegas Unidas [1992] ECR I-3669, paragraph 26).
13 In that connection, the Court has recently ruled that Article 30 of the Treaty prohibits obstacles to the free movement of goods resulting from rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling, packaging), even if those rules apply without distinction to all products, unless their application can be justified by a public-interest objective taking precedence over the free movement of goods (judgment of 24 November 1993 in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraph 15).
16 It should also be recalled that the Court has consistently held that rules must be proportionate to the goals pursued (see, in particular, the judgment in Case 382/87 Buet v Ministère Public [1989] ECR 1235, paragraph 11).
18 The Court has already ruled that a prohibition, justified under Paragraph 3 of the UWG, on placing in circulation in the Federal Republic of Germany products the name of which is followed by the symbol (R) to indicate that it is a registered trade mark, even though the mark is not protected in that State, is capable of impeding intra-Community trade. Such a prohibition can force the proprietor of a trade mark that has been registered in only one Member State to change the presentation of his products according to the place where it is proposed to market them and to set up separate distribution channels in order to ensure that products bearing the symbol (R) are not in circulation in the territory of Member States which have imposed the prohibition at issue (judgment in Pall, cited above, paragraph 13).