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Case Details

Case Details
National ID C 127/09
Member State European Union
Common Name Coty Prestige Lancaster Group GmbH v Simex Trading AG
Decision type Other
Decision date 03/06/2010
Court European Court of Justice
Subject
Plaintiff
Defendant
Keywords

Timeshare Directive, Article 1

This reference for a preliminary ruling concerns the interpretation of Article 13(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), as amended by the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), (‘Directive 89/104’).

The reference was made in the course of proceedings between Coty Prestige Lancaster Group GmbH (‘Coty Prestige’), a company established in Mainz (Germany), and Simex Trading AG (‘Simex Trading’), a company established in Appenzell (Switzerland), in which Coty Prestige seeks a prohibitory injunction against Simex Trading on the ground that Simex Trading, by marketing perfumery goods in Germany, infringes the rights attached to Community and international trade marks of which Coty Prestige is the proprietor or to which it has the right.
In circumstances such as those of the main proceedings, Article 13(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark and Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, are to be interpreted as meaning that the rights conferred by the trade mark are exhausted only if, according to an assessment which it is for the national court to make, it may be concluded that the proprietor of the mark expressly or impliedly consented to a putting on the market, either in the European Community or in the European Economic Area, of the goods in respect of which that exhaustion is claimed to exist.
In circumstances such as those of the main proceedings, where ‘perfume testers’ are made available, without transfer of ownership and with a prohibition on sale, to intermediaries who are contractually bound to the trade mark proprietor for the purpose of allowing their customers to test the contents, where the trade mark proprietor may at any time recall those goods and where the presentation of the goods is clearly distinguishable from that of the bottles of perfume normally made available to the intermediaries by the trade mark proprietor, the fact that those testers are bottles of perfume which bear not only the word ‘Demonstration’ but also the statement ‘Not for Sale’ precludes, in the absence of any evidence to the contrary, which it is for the national court to assess, a finding that the trade mark proprietor impliedly consented to putting them on the market.
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