31.3.2012   

EN

Official Journal of the European Union

C 98/10


Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 January 2012 — Trianon Productie BV, other party: Revillon Chocolatier SAS

(Case C-2/12)

2012/C 98/15

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden (Netherlands)

Parties to the main proceedings

Appellant: Trianon Productie BV

Respondent: Revillon Chocolatier SAS

Questions referred

1.

As regards the grounds for refusal or invalidity in Article 3(1)(e)(iii) of Directive 89/104/EEC, (1) as codified in Directive 2008/95 (2) — according to which (shape) marks cannot consist exclusively of a shape which gives a substantial value to the goods — do these concern the reason (or reasons) for the purchasing decision of the relevant public?

2.

Is a shape a ‘shape which gives substantial value to the goods’ within the meaning of the provision referred to above

(a)

only if that shape must be regarded as the main or overriding value in comparison with other values (such as, in the case of foods, their taste or substance); or

(b)

also where the goods have other values, which must be regarded as equally substantial, in addition to that main or overriding value?

3.

Is the answer to Question 2 to be determined on the basis of the view of the majority of the target public, or can the courts rule that the view of just part of that public is sufficient for the value concerned to be deemed ‘substantial’ within the meaning of the provision referred to above?

4.

In so far as the answer to Question 3 falls to be answered as indicated in the latter part of that question, what requirement is to be applied as regards the size of the relevant part of the public?


(1)  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).

(2)  OJ 2008 L 299, p. 25.