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Tuesday, 1 September 2009

ECJ takes delivery of DHL reference

On his travels at the moment, IPKat team member Jeremy was just checking the Curia website for hot news and he found this: a reference to the Court of Justice of the European Communities of a reference for a preliminary ruling from the Cour de cassation, France, lodged on 29 June 2009 but so far quite unknown to him: it's Case C-235/09 DHL Express France SAS v Chronopost SA. Anyway, the questions referred to this august tribunal are these:

"1. Must Article 98 of Council Regulation ... 40/94 of 20 December 1993 on the Community trade mark be interpreted as meaning that the prohibition issued by a Community trade mark court has effect as a matter of law throughout the entire area of the Community? [This Regulation was repealed on 13 April 2009 by Council Regulation 207/2009. Presumably an unkindly literal interpretation of this question requires the answer "no"]

2. If not, is that court [erroneous comment sent out to mail subscribers deleted] entitled to apply specifically that prohibition to the territories of other States in which the acts of infringement are committed or threatened?

3. In either case, are the coercive measures which the court, by application of its national law, has attached to the prohibition issued by it applicable within the territories of the Member States in which that prohibition would have effect?

4. In the contrary case [Contrary to what?], may that court order such a coercive measure, similar to or different from that which it adopts pursuant to its national law, by application of the national laws of the States in which that prohibition would have effect?"
Does any reader know what set of facts generated this reference? Or indeed, wails Merpel, what exactly the questions mean?

Regulation 207/2009 on the Community trade mark here
Note by Class 46 on the new consolidating Regulation here

3 comments:

Mike said...

Jeremy, I know it's late and all, but the court is definitely mentioned in Question 1:

1. Must Article 98 of Council Regulation ... 40/94 of 20 December 1993 on the Community trade mark be interpreted as meaning that the prohibition issued by a Community trade mark court has effect as a matter of law throughout the entire area of the Community?

Jeremy said...

Thanks, Mike -- it was later than you realised since I'm in a different time zone, two hours ahead. I'll amend the post accordingly.

Malte said...

The ECJ might issue a short ruling (albeit longer then "no") by answering the first two questions with a reference to Art. 94 (98 new regulation) CTMR - the territorial effect depends on the basis upon which the CTM-court assumes its competence.

It would be more interesting to obtain an answer to the question whether the claimant must expressively claim Community wide effect and whether he is allowed to define the scope of the decision if the CTM-court has Community wide competence pursuant to Art. 94 (1)/98 (1) CTMR.

The answers to questions 3&4 could be more interesting although (according to Art. 98 (2)/102 (2) CTMR) don't they depend on the private international law of the respective Member State in the first place ?

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