Budějovický Budvar, národní podnik v Anheuser-Busch Inc..
Date: 2011-09-22
29. In accordance with settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation (see, inter alia, Case 327/82 Ekro  [1984] ECR 107, paragraph 11; Case C‑287/98 Linste r [2000] ECR I‑6917, paragraph 43, and Case C‑467/08 Padawan [2010] ECR I‑0000, paragraph 32).
30. Although the third recital in the preamble to Directive 89/104 states that ‘it does not appear to be necessary at present to undertake full-scale approximation of the trade mark laws of the Member States’, the directive none the less provides for harmonisation in relation to substantive rules of central importance in this sphere, that is to say, according to the same recital, the rules concerning the provisions of national law which most directly affect the functioning of the internal market, and that recital does not preclude the harmonisation relating to those rules from being complete (Case C‑355/96 Silhouette International Schmied  [1998] ECR I‑4799, paragraph 23, and Case C‑40/01 Ansul [2003] ECR I‑2439, paragraph 27).
31. Further, it is stated, in the seventh recital in the preamble to Directive 89/104, that the ‘attainment of the objectives at which this approximation [of the legislation of Member States] is aiming requires that the conditions for obtaining and continuing to hold a registered trade mark are, in general, identical in all Member States’. The ninth recital of the same directive states that ‘it is fundamental, in order to facilitate the free circulation of goods and services, to ensure that henceforth registered trade marks enjoy the same protection under the legal systems of all the Member States’. Lastly, the eleventh recital of that directive further states that ‘it is important, for reasons of legal certainty and without inequitably prejudicing the interests of a proprietor of an earlier trade mark, to provide that the latter may no longer request a declaration of invalidity nor may he oppose the use of a trade mark subsequent to his own of which he has knowingly tolerated the use for a substantial length of time, unless the application for the subsequent trade mark was made in bad faith’.
32. In the light of the recitals in the preamble to Directive 89/104, the Court has held that Articles 5 to 7 of that directive effect a complete harmonisation of the rules relating to the rights conferred by a trade mark and accordingly define the rights of proprietors of trade marks in the European Union ( Silhouette International Schmied , paragraph 25; Joined Cases C‑414/99 to C‑416/99 Zino Davidoff and Levi Strauss [2001] ECR I‑8691, paragraph 39, and Case C‑127/09 Coty Prestige Lancaster Group [2010] ECR I‑0000, paragraph 27).
34. In that regard, it should be borne in mind that, according to the Court’s case‑law, the provisions of Directive 89/104, and in particular Article 9 thereof, indicate that the purpose of the directive is generally to strike a balance between the interest of the proprietor of a trade mark to safeguard its essential function, on the one hand, and the interests of other economic operators in having signs capable of denoting their goods and services, on the other (Case C‑145/05 Levi Strauss [2006] ECR I‑3703, paragraphs 28 and 29).
36. The Community trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it, and it applies independently of any national system (see Case C‑238/06 P Develey  v OHIM [2007] ECR I‑9375, paragraph 65, and Joined Cases C‑202/08 P and C‑208/08 P American Clothing Associates  v OHIM and OHIM  v American Clothing Associates [2009] ECR I‑6933, paragraph 58).
39. In accordance with the Court’s settled case‑law, the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see, inter alia, Case C‑336/03 easyCar  [2005] ECR I‑1947, paragraph 21; Case C‑549/07 Wallentin-Hermann  [2008] ECR I‑11061, paragraph 17, and Case C‑151/09 UGT‑FSP [2010] ECR I‑0000, paragraph 39).
40. Further, the preamble of a European Union measure may explain its content (see Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 76, and Wallentin-Hermann , paragraph 17).
43. ‘Acquiescence’ is therefore not the same as ‘consent’, as referred to in Article 7(1) of Directive 89/104, which must be so expressed that an intention to renounce a right is unequivocally demonstrated (see Zino Davidoff and Levi Strauss , paragraph 45).
65. However, in accordance with the Court’s settled case‑law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 67; Case C‑515/08 dos Santos Palhota and Others [2010] ECR I‑0000, paragraph 20, and Case C‑119/09 Société fiduciaire nationale d’expertise comptable [2011] ECR I‑0000, paragraph 21).
69. According to the Court’s case-law, the conditions of application of Article 4(1)(a) of Directive 89/104 correspond essentially to those of Article 5(1)(a) of that 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 for goods or services identical with those for which that trade mark is registered (Case C‑291/00 LTJ Diffusion [2003] ECR I‑2799, paragraph 41).
70. Consequently, the Court’s interpretation of Article 5(1)(a) of Directive 89/104 is also applicable to Article 4(1)(a) thereof, since that interpretation is transposable, mutatis mutandis , to the latter provision (see LTJ Diffusion , paragraph 43)
71. It follows from the Court’s case‑law that the exclusive right under Article 5(1)(a) of Directive 89/104 was conferred in order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade mark can fulfil its functions and that, therefore, the exercise of that right must be reserved to cases in which another party’s use of the sign affects or is liable to affect the functions of the trade mark. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services, but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising (see, inter alia, Case C‑487/07 L’Oréal and Others  [2009] ECR I‑5185, paragraph 58, and Joined Cases C‑236/08 to C‑238/08 Google France and Google [2010] ECR I‑2417, paragraph 77).
72. It should be added that Article 5(1)(a) of Directive 89/104 does not require evidence that there exists a likelihood of confusion on the part of the public in order to afford absolute protection in the case of identity of the sign and the trade mark and of the goods or services ( LTJ Diffusion, paragraph 49).