NEXT TUESDAY IN LUXEMBOURG

The IPKat isn't sure how many judging days there are till Xmas but, while others plan their office parties and measure up their turkeys, the European Court of Justice (ECJ) is still as busy as ever. Next Tuesday, 30 November, another two decisions will be emanating from Luxembourg, one from the full ECJ, the other from the Court of First Instance (CFI).

The European Court of Justice judgment in Case C-16/03 Peak Holding is a Swedish reference for guidance as to the interpretation of Article 7(1) of Council Directive 89/104 which deals with exhaustion (in the US "first sale") doctrine. Specifically, where that provision refers to "goods which have been put on the market", at what time are goods regarded as being put on the market? In May Advocate General Stix-Hackl advised the court to rule that

"1. Article 7(1) of Directive 89/104 is to be interpreted as meaning that goods bearing a trade mark are not put on the market merely by reason of their importation into the EEA and customs clearance, nor by reason of their being offered for sale in shops belonging to the trade mark proprietor or undertakings associated with him. Goods are instead put on the market in the EEA when an independent third party has acquired the right of disposal of the goods bearing a mark, for example as the result of a sale.

2. Where goods bearing a mark are sold to another undertaking within the EEA, it is irrelevant to the consideration of when exhaustion arises under Article 7(1) of Directive 89/104 whether and to what extent the trade mark proprietor has imposed territorial restrictions on sale on the purchaser".

Will the Court accept this guidance? All will soon be revealed.

The Court of First Instance will be ruling in Case T-173/03 Geddes v OHIM, on the registrability of the word mark NURSERYROOM for products in classes 16, 18, 21, 25 and 28.

Be sure to join the IPKat, who will bring news of these decisions as soon as he can.