22.5.2010   

EN

Official Journal of the European Union

C 134/23

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 4 March 2010 — Frisdranken Industrie Winters BV v Red Bull GmbH

(Case C-119/10)

2010/C 134/35

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Frisdranken Industrie Winters BV

Defendant: Red Bull GmbH

Questions referred

1.

(a)

Is the mere ‘filling’ of packaging which bears a sign (as referred to in paragraph 3.1 (iv) above) to be regarded as using that sign in the course of trade within the meaning of Article 5 of the Trade Mark Directive, (1) even if that filling takes place as a service provided to and on the instructions of another person, for the purposes of distinguishing that person’s goods?

(b)

Does it make any difference to the answer to question 1.a if there is an infringement for the purposes of Article 5(1)(a) or (b)?

2.

If the answer to question 1.a is in the affirmative, can using the sign then also be prohibited in the Benelux on the basis of Article 5 of the Trade Mark Directive if the goods bearing the sign are destined exclusively for export to countries outside (a) the Benelux area or (b) the European Union, and they cannot — except in the undertaking where the filling took place — be seen therein by the public?

3.

If the answer to question II (a or b) is in the affirmative, what criterion must be used when answering the question whether there has been trade-mark infringement: should the criterion be the perception of an average consumer who is reasonably well-informed and reasonably observant and circumspect in the Benelux or alternatively in the European Union — who then in the given circumstances can only be determined in a fictional or abstract way — or must a different criterion be used in this case, for example, the perception of the consumer in the country to which the goods are exported?

(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).