Official Journal of the European Union

C 39/3

(Case C-119/10) (<span class="oj-super oj-note-tag">1</span>)

(Trade marks - Directive 89/104/EEC - Article 5(1)(b) - Filling of cans already bearing a sign similar to a trade mark - Service provided under an order from and on the instructions of another person - Action taken by trade-mark proprietor against the service provider)

(2012/C 39/03)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Frisdranken Industrie Winters BV

Defendant: Red Bull GmbH

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 5 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) — Right of the proprietor of a registered trade mark to oppose the unlawful use of its mark — Use of a sign — Filling of cans already bearing a sign as a service for and under an order from another person — Goods destined exclusively for export to countries outside the Benelux area or the European Union — Relevant public

Operative part of the judgment

Article 5(1)(b) 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 a service provider who, under an order from and on the instructions of another person, fills packaging which was supplied to it by the other person who, in advance, affixed to it a sign which is identical with, or similar to, a sign protected as a trade mark does not itself make use of the sign that is liable to be prohibited under that provision.

(<span class="oj-super">1</span>) OJ C 134, 22.5.2010.