Mystery Canon case: can anyone help?

The IPKat wonders if any readers can help him. Information has just been posted on the Curia website concerning Case C-181/09 Canon Kabushiki Kaisha v IPN Bulgaria OOD, a reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009. This is an intellectual property case, so the IPKat is already deeply fascinated by it. However, today's notice reads:
"By decision of 17 September 2009, the Court of Justice (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible".
The Court's Order is only in French and Bulgarian. can anyone tell the IPKat and his readers what this is all about? Merpel also has a question: is there any significance in the reference being "manifestly inadmissible" rather than just the usual sort of inadmissible?
Mystery Canon case: can anyone help? Mystery Canon case: can anyone help? Reviewed by Jeremy on Wednesday, November 25, 2009 Rating: 5


  1. Hi Jeremy,

    It says that the Bulgarian court has not given the factual and regulatory framework lying behind the reference nor given the precise reasons it lead it to wonder about interpretation of EU law. The Bulgarian court does not give any explanation on the reasons of the choice of the Community provision it asks teh ECJ to interpret nor the link it establishes between this provision and the national law applicable to the dispute.

    The ECJ also refers to its case law which requires national courts to comply with the ruling above.

  2. The referring court did not give the Court the information is needs / requires in order to answer the question. No description of the factual and legal background; no explanation of the link between the EU law asked about, and the relevant national law etc:
    "le Sofiyski gradski sad n’a transmis à la Cour que le dossier de l’affaire au principal et le libellé de la question préjudicielle, sans décrire le cadre factuel et réglementaire dans lequel s’inscrit celle-ci ni donner les raisons précises qui l’ont conduit à s’interroger sur l’interprétation du droit communautaire. En outre, ladite juridiction ne donne aucune explication sur les raisons du choix de la disposition communautaire dont il demande l’interprétation ni sur le lien qu’elle établit entre cette disposition et la législation nationale applicable au litige au principal. Partant, il y a lieu de constater que la demande de décision préjudicielle ne répond pas aux exigences rappelées aux points 8 à 11 de la présente ordonnance."

  3. Here's a translation, very quickly done, but better than nothing. I should add that I am not a trademark guy.


    The lawsuit and the request for a preliminary ruling

    (4) Il follows from the file of the main proceedings as filed at the clerk's office that, according to Canon Kabushiki Kaisha, the products concerned by the lawsuit that has been referred to the referring court, in spite of the allegation according to which these products were in transit to Serbia, were put on the community market without the authorisation of said company. This is the reason why the latter has brought the lawsuit before the referring court.

    (5) As the Sofiyski gradski sad estimated that the solution of the lawsuit brought before it necessitated an interpretation of community law, it has decided to stay the proceedings and to refer the following request for a preliminary ruling :

    « How should the provision of article 5 (paragraph 3 under c)) of the Directive 89/104/EEC be understood and interpreted : does it refer to importation and exportation of original goods, manufactured by the proprietor of trade mark rights and put on the market by him, or does it rather refer to the importation and exportation of goods imitating the trademarks of the proprietor of the trade mark right, i.e. goods that are not original and which have not been manufactured by the proprietor ? »

    On the admissibility of the request for a preliminary ruling

    (6) It should be remembered that, according to the established case law, the proceedings instituted by article 234 EC are an instrument of cooperation between the Court and the national jurisdictions, thanks to which the first supplies the latter with elements of interpretation of community law which they need for the solution of lawsuits which they have to settle …

    (7) Within the framework of this cooperation, the national jurisdiction to which the lawsuit has been referred, being the only jurisdiction having direct knowledge of the facts underlying the lawsuit and bearing the responsibility for the jurisdictional decision to be taken, has to appreciate, in view of the particularity of the case, both the need for a preliminary ruling in order to be able to render a judgment, and the relevance of the question it addresses to the Court. As a consequence, when the question referred concern the interpretation of community law, the Court, in principle, has to give a verdict. …

    (8) However, the need to reach an interpretation of community law that is useful to the national judge requires that the latter defines the factual and statutory framework to which the referred questions belong or, at least, that he explains the factual hypotheses on which the questions are based. …

    (9) The Court also insists on the importance of the fact that the national judge indicates the precise reasons which led him to question the interpretation of community law and to consider it necessary to request a preliminary ruling of the Court. …

  4. (10) Thus the Court has decided that it is mandatory that the national judge makes explicit, in the referring decision, the factual and statutory framework of the main proceedings and provides a minimum amount of explanations for the reasons why he has chosen the community provisions the interpretation of which he requests, as well as for the link he establishes between these provisions and the national law that is applicable to the lawsuit before him. …

    (11) Moreover, it is important to underline that the pieces of information contained in the referring decision do not only allow the Court to give useful answers but also to provide the governments of the member states and other interested parties with the possibility to present observations according to article 20 of the statues of the Court of justice. The latter has to be vigilant that this possibility is safeguarded, as pursuant this provision, only the referring decisions are notified to the parties concerned. …

    (12) In the present case it should be noted that the Sofiyski gradski sad has transmitted only the file of the main proceedings and the question for preliminary ruling to the Court, and has neither described the factual and statutory framework to which it belongs, nor given the precise reasons which led it to question the interpretation of community law. Moreover, said jurisdiction has not given any explanation of the reasons for the choice of the community provision which it requests to be interpreted, or of the link which it establishes between this provision and the national law that is applicable to the main proceedings. Therefore it has to be concluded that the request for a preliminary ruling does not fulfil the requirements mentioned in points 8 to 11 of the present order.

    (13) Under these condition it has to be concluded that the present request for a preliminary ruling is manifestly inadmissible in application of articles 92, paragraph 1, and 103, paragraph 1, of the rules of proceedings.

  5. I read the French text. The reason for inadmissibility is the fact that the referring court submitted only the dossier of the case in which the need for interpretation occurred, and the text of the preliminary question, without presenting the factual and legal framework, nor explaining why it needs to ask the preliminary question. In addition, the court did not explain the reason to apply this particular provision of the Community law or its link with the national law applicable in the case. According to established case law, the court submitting a question for a preliminary ruling must provide all that information, not only to allow the ECJ to answer the question, but also to let all Member States which might be interested to submit their observations.
    I hope I could help!
    Best regards,


  6. Thank you to all the linguists.
    It does, however, seem to be a rather public humiliation for the referring court who seem merely to query whether trademark law is intended to interfere with genuine goods. Would a court acting in relation to a European brand have been treated with more diplomacy?

  7. Honestly, rather public humiliation?

    I'ld say the Court has spared the Bulgarian judge by not addressing the question on the merits.

  8. "Would a court acting in relation to a European brand have been treated with more diplomacy?"

    I don't think that the problem is the brand's origin, but rather a referring court of a relatively new member state which clairly failed to do even the most elementary homework before bothering the CFI. To use French again, the public humiliation is clearly intended to "encourager les autres".

  9. Filemot wrote:
    > Would a court acting in relation to a European brand have been treated with more diplomacy?
    I wonder. In particular, I wonder whether this indeed schoolmaster-wise brought lesson would have been brought differently if this matter would apply to Leica instead of Canon.

    Possibly not.

    Because it may not so much be the brand that plays a role here, but the national court or the new Member State that, according to the European court, needed to be taught a lesson.

    I do not know how the European courts usual formulate their French decisions (I prefer reading OEB decisions :-) ), but the formulation appears to me a bit arrogant. Though please note French is not my mother tongue...

    In any case, the Court has done a nice job of explaining "new Europeans" how to use the overarching European jurisdictional powers.

  10. Anonymous please note it’s not CFI, it’s ECJ.

    Even so and despite the shocking language used by the asking jurisdiction (you might well enjoy it if you were not lost in the translation), the question is not entirely dull. Somehow it goes beyond Silhouette etc. Said Gulmann, J. then: 'Art. 7 (1) of Directive 89/104 cannot be interpreted as meaning that the proprietor of a trade mark is entitled, on the basis of that provision alone, to obtain an order restraining a third party from using his trade mark for products which have been put on the market outside the European Economic Area under that mark by the proprietor or with his consent.' Now the new question might be interpreted so: Does Art. 5 (3) (c) of Directive 89/104 prohibit importation of goods under a sign identical or similar (...etc.) to this mark only (under counterfeiting signs only)?


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