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C 85/2 EN Official Journal of the European Union 3.4.

2004

3. Article 3(1)(c) of Directive 89/104 precludes registration of a For the purposes of determining whether Article 3(1)(c) of
trade mark which consists exclusively of signs or indications Directive 89/104 applies to such a mark, it is irrelevant
which may serve, in trade, to designate characteristics of the whether or not there are synonyms capable of designating the
goods or services in respect of which registration is sought, and same characteristics of the goods or services mentioned in the
that is the case even when there are more usual signs or application for registration or that the characteristics of the
indications for designating the same characteristics and regard- goods or services which may be the subject of the description are
less of the number of competitors who may have an interest in commercially essential or merely ancillary.
using the signs or indications of which the mark consists.
6. Directive 89/104 prevents a trade mark registration authority
from registering a mark for certain goods or services on
condition that they do not possess a particular characteristic.
Where the applicable national law provides that the exclusive
right conferred by registration, by a competent authority in an 7. The practice of a trade mark registration authority which
area in which a number of officially recognised languages concentrates solely on refusing to register >manifestly inadmis-
coexist, of a word mark expressed in one of those languages sible marks is incompatible with Article 3 of Directive 89/104.
extends automatically to its translation in the other languages,
the authority must ascertain as regards each of those translations
whether the mark actually consists exclusively of signs or (1) OJ C 47 of 19.2.2000.
indications which may serve, in trade, to designate characteristics
of those goods or services.

4. Article 3(1) of Directive 89/104 must be interpreted as


meaning that a mark which is descriptive of the characteristics
JUDGMENT OF THE COURT
of certain goods or services but not of those of other goods or
services for the purposes of Article 3(1)(c) of Directive 89/104
cannot be regarded as necessarily having distinctive character in (Sixth Chamber)
relation to those other goods or services for the purposes of
subparagraph (b) of the provision.
of 5 February 2004

in Case C-24/00: Commission of the European Communi-


It is of no relevance that a mark is descriptive of the ties v French Republic (1)
characteristics of certain goods or services under Article 3(1)(c)
of Directive 89/104 when it comes to assessing whether the
same mark has distinctive character in relation to other goods (Failure of a Member State to fulfil obligations — Articles 30
or services for the purposes of Article 3(1)(b) of the Directive. and 36 of the EC Treaty (now, after amendment, Articles 28
EC and 30 EC) — National legislation exhaustively listing
the nutrients which may be added to foodstuffs — Measure
having equivalent effect — Justification — Public health —
Consumer protection — Proportionality)

5. Article 3(1)(c) of Directive 89/104 must be interpreted as


meaning that a mark consisting of a word composed of (2004/C 85/02)
elements, each of which is descriptive of characteristics of the
goods or services in respect of which registration is sought, is
itself descriptive of the characteristics of those goods or services (Language of the case: French)
for the purposes of that provision, unless there is a perceptible
difference between the word and the mere sum of its parts: that (Provisional translation; the definitive translation will be published
assumes either that because of the unusual nature of the in the European Court Reports)
combination in relation to the goods or services the word creates
an impression which is sufficiently far removed from that
produced by the mere combination of meanings lent by the
elements of which it is composed, with the result that the word
is more than the sum of its parts, or that the word has become In Case C-24/00, Commission of the European Communities
part of everyday language and has acquired its own meaning, (Agents: R. B. Wainwright and O. Couvert-Castéra) with an
with the result that it is now independent of its components. In address for service in Luxembourg, v French Republic (Agents:
the latter case, it is necessary to ascertain whether a word which initially R. Abraham and R. Loosli-Surrans, and, subsequently,
has acquired its own meaning is not itself descriptive for the J.-F. Dobelle andR. Loosli-Surrans) with an address for service
purposes of the same provision. in Luxembourg: Application for a declaration that:
3.4.2004 EN Official Journal of the European Union C 85/3

— by failing to adopt legislation ensuring the free movement JUDGMENT OF THE COURT
of foodstuffs for daily consumption and foodstuffs intend-
ed for particular nutritional uses, which are lawfully
manufactured and/or marketed in other Member States (Sixth Chamber)
but contain additives (such as vitamins, minerals and
other ingredients) not provided for under French legis-
lation;
of 12 February 2004

— by failing to provide for a simplified procedure for having


a substance included on the national list of authorised in Case C-265/00 (Reference for a preliminary ruling from
additives, which is necessary if the above foodstuffs are the Cour de justice Benelux): Campina Melkunie BV v
to be marketed in France; Benelux-Merkenbureau (1)

— by hindering the marketing in France of the above (Approximation of laws — Trade marks — Directive 89/
foodstuffs without establishing that their marketing poses 104/EEC — Article 3(1) — Ground for refusal to register
a risk to public health, — Neologism composed of elements each of which is
descriptive of characteristics of the goods or services con-
cerned)
the French Republic has failed to fulfil its obligations under
Article 30 of the EC Treaty (now, after amendment, Article 28
EC), the Court (Sixth Chamber), composed of: V. Skouris, (2004/C 85/03)
acting for the President of the Sixth Chamber, C. Gulmann,
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-
teur), Judges; J. Mischo, Advocate General; H. von Holstein, (Language of the case: Dutch)
Deputy Registrar, has given a judgment on 5 February 2004,
in which it:
(Provisional translation; the definitive translation will be published
in the European Court Reports)
1. Declares that, by failing to provide for a simplified procedure
for having included on the national list of authorised nutrients
those added to foodstuffs for daily consumption and foodstuffs
intended for particular nutritional uses which are lawfully
manufactured and/or marketed in other Member States, In Case C-265/00: Reference to the Court under Article 234
EC by the Benelux-Gerechtshof for a preliminary ruling in the
proceedings pending before that court between Campina
and
Melkunie BV and Benelux-Merkenbureau, on the interpretation
of Articles 2 and 3(1) of First Council Directive 89/104/EEC of
by hindering the marketing in France of certain foodstuffs, such 21 December 1988 to approximate the laws of the Member
as food supplements and dietary products containing the States relating to trade marks (OJ 1989 L 40, p. 1), the Court
substances L-tartrate and L-carnitine, and confectionery and (Sixth Chamber), composed of: V. Skouris, acting for the
drinks to which certain nutrients have been added, without President of the Sixth Chamber, C. Gulmann, J. N. Cunha
establishing that the marketing of such foodstuffs entails a real Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges;
risk for public health, D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
Deputy Registrar, has given a judgment on 12 February 2004,
the French Republic has failed to fulfil its obligations under in which it has ruled:
Article 30 of the EC Treaty (now, after amendment, Article 28
EC);
Article 3(1)(c) of First Council Directive 89/104/EEC of 21 Decem-
ber 1988 to approximate the laws of the Member States relating to
2. Dismisses the remainder of the application; Orders the Com- trade marks must be interpreted as meaning that a trade mark
mission of the European Communities and the French Republic consisting of a neologism composed of elements, each of which is
to pay their own costs. descriptive of characteristics of the goods or services in respect of
which registration is sought, is itself descriptive of the characteristics
of those goods or services for the purposes of that provision, unless
there is a perceptible difference between the neologism and the mere
sum of its parts: that assumes that, because of the unusual nature of
(1) OJ C 149 of 27.5.2000.
the combination in relation to the goods or services, the word creates
an impression which is sufficiently far removed from that produced
by the mere combination of meanings lent by the elements of which
it is composed, with the result that the word is more than the sum of
its parts.