Court of Justice of the European Communities, C-313/94

Articles 30 and 36 of the EC Treaty are to be interpreted as: a) precluding reliance on protection against unfair competition as a ground for prohibiting an undertaking from using its right to import into a Member State products coming from another Member State where they are lawfully marketed and to market them under a particular trade mark in the Member State of importation, when other traders have the same right, even if they do not use it; b) but not precluding a prohibition, on grounds of consumer protection, on the marketing by all traders of products coming from a Member State where they are lawfully marketed, provided that the prohibition is necessary in order to ensure consumer protection and proportionate to that objective, which must be incapable of being achieved by measures which are less restrictive of intra-Community trade. The national court must, in particular, examine whether the risk of misleading consumers is sufficiently serious to be able to override the requirements of the free movement of goods. (1)
Article 12(2)(b) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be interpreted as not precluding a prohibition on the marketing of products coming from a Member State where they are lawfully marketed, on the ground that they bear a trade mark which the proprietor has been specifically prohibited from using in the Member State of importation because it has been held there to be liable to mislead consumers. (2)


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