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3.4.

2004 EN Official Journal of the European Union C 85/5

1. For three-dimensional trade marks consisting of the packaging JUDGMENT OF THE COURT
of goods which are packaged in trade for reasons linked to the
very nature of the goods, the packaging thereof must be
assimilated to the shape of the goods, so that that packaging
(Third Chamber)
may constitute the shape of the goods within the meaning of
Article 3(1)(e) of the First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member
States relating to trade marks and may, where appropriate, of 12 February 2004
serve to designate characteristics of the packaged goods,
including their quality, within the meaning of Article 3(1)(c) of
that directive.
in Case C- 330/01 P: Hortiplant SAT v Commission of the
European Communities (1)

2. For three-dimensional trade marks consisting of the packaging


of goods which are packaged in trade for reasons linked to the (Agriculture — EAGGF — Cancellation and request for
very nature of the product, their distinctive character within the repayment of financial assistance — Regulation (EEC)
meaning of Article 3(1)(b) of Directive 89/104 must be No 4253/88 — Article 24(1) and (2) — Obligation on the
assessed by reference to the perception of the average consumer Commission to request the Member State concerned to
of such goods, who is reasonably well informed and reasonably submit observations before cancelling financial assistance)
observant and circumspect. Such a trade mark must enable such
a consumer to distinguish the product concerned from those
of other undertakings without conducting an analytical or (2004/C 85/06)
comparative examination and without paying particular atten-
tion.

(Language of the case: Spanish)

3. The distinctive character of a trade mark within the meaning of


Article 3(1)(b) of Directive 89/104 may be assessed solely on (Provisional translation; the definitive translation will be published
the basis of national trade usage, without any need for other in the European Court Reports)
administrative investigations to be undertaken in order to
determine whether and to what extent identical trade marks
have been registered or have been refused registration in other
Member States of the European Union.

In Case C-330/01 P, Hortiplant SAT established in Amposta


The fact that an identical trade mark has been registered in one (Spain), represented by C. Fernández Vicién and I. Moreno-
Member State for identical goods or services may be taken into Tapia Rivas: APPEAL against the judgment of the Court of
consideration by the competent authority of another Member First Instance of the European Communities (Fourth Chamber)
State among all the circumstances which that authority must of 14 June 2001 in Case T-143/99 Hortiplant v Commission
take into account in assessing the distinctive character of a trade [2001] ECR II-1665, seeking to have that judgment set aside,
mark, but it is not decisive regarding the latter’s decision to the other party to the proceedings being: Commission of
grant or refuse registration of a trade mark. the European Communities (Agents: L. Visaggio, assisted by
J. Guerra Fernández) with an address for service in Luxem-
bourg, the Court (Third Chamber), composed of: J. N. Cunha
On the other hand, the fact that a trade mark has been Rodrigues, acting for the President of the Third Chamber, J.-
registered in one Member State for certain goods or services can P. Puissochet and F. Macken (Rapporteur), Judges; S. Alber,
have no bearing on the examination by the competent trade Advocate General; H. von Holstein, Deputy Registrar, has
mark registration authority of another Member State of the given a judgment on 12 February 2004, in which it:
distinctive character of a similar trade mark for goods or services
similar to those for which the first trade mark was registered.
1. Dismisses the appeal;

2. Orders Hortiplant to pay the costs.


(1 ) OJ C 227, 11.8.2001.

(1) OJ C 303 of 27.10.2001.