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Case C-46/10: Judgment of the Court (First Chamber) of 14 July 2011 (reference for a preliminary ruling from the Højesteret — Denmark) — Viking Gas A/S v Kosan Gas A/S, formerly BP Gas A/S (Trade marks — Directive 89/104/EEC — Articles 5 and 7 — Gas bottles protected as a three-dimensional mark — Placing on the market by an exclusive licensee — Business activity of a competitor of the licensee consisting in the refilling of those bottles)
ECLI:EU:UNKNOWN:62010CA0046
62010CA0046
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Official Journal of the European Union
C 269/11
(Case C-46/10) (<span class="super">1</span>)
(Trade marks - Directive 89/104/EEC - Articles 5 and 7 - Gas bottles protected as a three-dimensional mark - Placing on the market by an exclusive licensee - Business activity of a competitor of the licensee consisting in the refilling of those bottles)
2011/C 269/17
Language of the case: Danish
Referring court
Parties to the main proceedings
Applicant: Viking Gas A/S
Defendant: Kosan Gas A/S, formerly BP Gas A/S
Re:
Reference for a preliminary ruling — Højesteret — Interpretation of Articles 5 and 7 of 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) — Placing on the market, by an exclusive licensee, of a composite gas bottle the shape of which is registered as a three-dimensional national and Community trade mark constituted by its packaging — Business activity of a competitor of the licensee consisting in the refilling of the licensee’s composite gas bottles and the sale of gas in those bottles after affixing to them an adhesive label indicating that the bottles have been filled by the competitor but without having removed the figurative and word marks of the exclusive licensee
Operative part of the judgment
Articles 5 and 7 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the holder of an exclusive licence for the use of composite gas bottles intended for re-use, the shape of which is protected as a three-dimensional mark and to which the holder has affixed its own name and logo that are registered as word and figurative marks, may not prevent those bottles, after consumers have purchased them and consumed the gas initially contained in them, from being exchanged by a third party, on payment, for composite bottles filled with gas which does not come from the holder of that licence, unless that holder is able to rely on a proper reason for the purposes of Article 7(2) of Directive 89/104.
(<span class="note">1</span>) OJ C 80, 27.3.2010.