SUNDAY, 30 NOVEMBER 2008
Coming up this week in the European Court of Justice
Next Tuesday, 2 December, the Court of Justice of the European Communities hears the parties' submissions in Case C-478/07 Budejovický Budvar národní podnik v Rudolf Ammersin GmbH, Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 25 October 2007. The questions referred are as follows:
"1. In its judgment of 18 November 2003 in Case C-216/01 the Court of Justice defined the requirements for the compatibility with Article 28 EC of the protection of a designation as a geographical indication which in the country of origin is the name neither of a place nor of a region, namely that such a designation must,
- according to the factual circumstances and
- perceptions in the country of origin, designate a region or a place in that State,
- and that its protection must be justified there on the basis of the criteria laid down in Article 30 EC.
Do those requirements mean:
1.1. that the designation as such fulfils a specific geographical indication function referring to a particular place or a particular region, or does it suffice that the designation is capable, in conjunction with the product bearing it, of informing consumers that the product bearing it comes from a particular place or a particular region in the country of origin;
1.2. that the three conditions are conditions to be examined separately and to be satisfied cumulatively;
1.3. that a consumer survey is to be carried out for ascertaining perceptions in the country of origin, and, if so, that that a low, medium or high degree of recognition and association is required;
1.4. that the designation has actually been used as a geographical indication by several undertakings, not just one undertaking, in the country of origin and that use as a trade mark by a single undertaking precludes protection?
2. Does the circumstance that a designation has not been notified or its registration applied for either within the six-month period provided for in [Commission] Regulation (EC) No 918/2004 [of 29 April 2004 introducing transitional arrangements for the protection of geographical indications and designations of origin for agricultural products and foodstuffs in connection with the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia] or otherwise in the context of [Council] Regulation (EC) No 510/2006 [of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs] mean that existing national protection, or in any case protection that has been extended bilaterally to another Member State, becomes void if the designation is a qualified geographical indication under the national law of the State of origin?
3. Does the circumstance that, in the context of the Treaty of Accession between the Member States of the European Union and a new Member State, the protection of several qualified geographical indications for a foodstuff has been claimed by that Member State in accordance with Regulation (EC) No 510/2006 mean that national protection, or in any case protection that has been extended bilaterally to another Member State, for another designation for the same product may no longer be maintained, and Regulation (EC) No 510/2006 has preclusive effect to that extent?"
On the following day, Wednesday 3 December, the Court receives the Advocate General's Opinion in Case C-59/08 Copad SA v Christian Dior couture SA, Vincent Gladel, acting as receiver of Société industrielle de lingerie (SIL) and Société industrielle de lingerie (SIL), a reference for a preliminary ruling from the Cour de Cassation (France) lodged on 15 February 2008. The questions posed in this case are:
"1. Must Article 8(2) of First Council Directive No 89/104 ... be interpreted as meaning that the proprietor of a trade mark can invoke the rights conferred by that trade mark against a licensee who contravenes a provision in the licensing contract prohibiting, on grounds of the trade mark's prestige, sale to discount stores?
2. Must Article 7(1) of that directive be interpreted as meaning that a licensee who puts goods bearing a trade mark on the market in the European Economic Area in disregard of a provision of the licensing contract prohibiting, on grounds of the trade mark's prestige, sale to discount stores, does so without the consent of the trade mark proprietor?
3. If not, can the proprietor invoke such a provision to oppose further commercialisation of the goods, on the basis of Article 7(2) of that directive?"
Posted by: Jeremy Phillips @ 08.28
Tags: commercialisation, ECJ reference for preliminary ruling, exhaustion, PGI,