Reference for a preliminary ruling from the Oberlandesgericht Nürnberg (Germany) lodged on 6 April 2009 — Coty Prestige Lancaster Group GmbH v Simex Trading AG

(Case C-127/09)

2009/C 141/55

Language of the case: German

Referring court

Oberlandesgericht Nürnberg

Parties to the main proceedings

Applicant: Coty Prestige Lancaster Group GmbH

Defendant: Simex Trading AG

Question referred

Are goods put on the market within the meaning of Article 13(1) of Regulation (EC) No 40/94 (1) and Article 7 of Directive 89/104/EEC (2) if ‘perfume testers’ are made available to contractually-bound intermediaries without transfer of ownership and with a prohibition on the sale thereof so that those intermediaries are able to allow potential customers to use the contents of the goods for test purposes, the goods bearing a notice stating that they may not be sold, the recall of the goods by the manufacturer/trade mark proprietor at any time remaining contractually possible and the packaging of the goods being significantly different from the goods usually put on the market by the manufacturer/trade mark proprietor in that it is plainer?

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ L 11, 14.1.1994, p. 1–36.

(2)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, OJ L 40, 11.2.1989, p. 1–7.