Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

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61995J0316 European Court reports 1997 Page I-03929 10 XVIII p.265-282 Dios, José María de: Revista Jurídica de Catalunya 1998 p.597-599 Galloux, Jean-Christophe: Recueil Dalloz Sirey 1999 Som. p.130-131 PROCEDU Reference for a preliminary ruling ADVGEN Jacobs JUDGRAP Gulmann DATES of document: 09/07/1997 of application: 05/10/1995 © An extract from a JUSTIS database 212
61995J0349 European Court reports 1997 Page I-06227 1 Judgment of the Court of 11 November 1997 Frits Loendersloot, trading as F. Loendersloot Internationale Expeditie v George Ballantine & Son Ltd and Others. Reference for a preliminary ruling: Hoge Raad - Netherlands. Article 36 of the EC Treaty - Trade mark rights - Relabelling of whisky bottles. Case C-349/95. Free movement of goods - Industrial and commercial property - Trade mark rights - Product put on the market in a Member State by the trade mark owner or with his consent - Reaffixing by a third party of the label bearing the trade mark - Opposition by the trade mark owner - Permissible - Conditions (EC Treaty, Art. 36) Article 36 must be interpreted as meaning that the owner of trade mark rights may, even if that constitutes a barrier to intra-Community trade, rely on those rights to prevent a third party from removing and then reaffixing or replacing labels bearing the mark which the owner has himself affixed to products he has put on the Community market, unless the following conditions are satisfied: - it is established that the use of the trade mark rights by the owner to oppose the marketing of the relabelled products under that trade mark would contribute to the artificial partitioning of the markets between Member States. That is the case in particular if the labels are removed and reaffixed for the purpose of removing the identification numbers which the owner has applied to his products in order to be able to reconstruct the itinerary of those products, with the purpose of preventing dealers from supplying persons carrying on parallel trade. However, where identification numbers have been applied to comply with a legal obligation or to attain important objectives which are legitimate from the point of view of Community law, the fact that an owner of trade mark rights makes use of those rights to prevent a third party from removing and then reaffixing or replacing labels bearing his trade mark in order to remove those numbers does not contribute to an artificial partitioning of the markets between Member States; - it is shown that the relabelling cannot affect the original condition of the product; - the presentation of the relabelled product is not such as to be liable to damage the reputation of the trade mark and its owner; and - the person who relabels the products informs the trade mark owner of the relabelling before the relabelled products are put on sale. In Case C-349/95, REFERENCE to the Court under Article 177 of the EC Treaty by the Hoge Raad der Nederlanden for a preliminary ruling in the proceedings pending before that court between Frits Loendersloot, trading as F. Loendersloot Internationale Expeditie, and George Ballantine & Son Ltd and Others on the interpretation of Article 36 of the EC Treaty, THE COURT, composed of: G.C. Rodríguez Iglesias, President, C. Gulmann (Rapporteur), H. Ragnemalm, M. Wathelet (Presidents of Chambers), J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, G. Hirsch, P. Jann and L. Sevon, Judges, © An extract from a JUSTIS database 213
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