25.10.2008

Official Journal of the European Union

C 272/8

(Case C-324/08)

(2008/C 272/10)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: 1. Makro Zelfbedieningsgroothandel CV, 2. Metro Cash & Carry BV and 3. Remo Zaandam BV

Respondent: Diesel SpA

Questions referred

1.In the case where goods bearing a trade mark proprietor's mark have previously been placed on the market within the EEA, but not by him or with his express consent, must the same criteria be applied in determining whether this has occurred with the (implicit) consent of the trade mark proprietor, within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as are applied in the case where such goods have previously been placed on the market outside the EEA by the trade mark proprietor or with his consent?

2.If the answer to Question 1 is in the negative, what criteria — whether or not derived (in part) from the judgment of the Court of Justice in Case C-9/93 IHT and Danzinger v Ideal-Standard and Wabco Standard [1994] ECR I-2789, … — must be applied in the first case referred to in that question in order to determine whether the trade mark proprietor has given (implicit) consent within the meaning of Directive 89/104/EEC?

(1) OJ 1989 L 40, p. 1.