Keywords
Summary

Keywords

1 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - RIGHTS - PROTECTION - SCOPE

( EEC TREATY , ART . 36 )

2 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - TRADEMARK - DIFFERENT MARKS FOR THE SAME PRODUCT IN TWO DIFFERENT MEMBER STATES - SINGLE PROPRIETOR - PLACING THE PRODUCT ON THE MARKET IN A MEMBER STATE - IMPORTATION INTO ANOTHER MEMBER STATE - AFFIXING BY A THIRD PARTY OF THE MARK REGISTERED IN THE LATTER STATE - PREVENTION BY THE PROPRIETOR - ADMISSIBILITY - CONDITIONS

( EEC TREATY , ART . 36 )

Summary

1 . IT IS CLEAR FROM ARTICLE 36 OF THE EEC TREATY , IN PARTICULAR ITS SECOND SENTENCE , AS WELL AS FROM THE CONTEXT , THAT WHILST THE TREATY DOES NOT AFFECT THE EXISTENCE OF RIGHTS RECOGNIZED BY THE LAWS OF A MEMBER STATE IN MATTERS OF INDUSTRIAL AND COMMERCIAL PROPERTY , THE EXERCISE OF THOSE RIGHTS MAY NEVERTHELESS , DEPENDING ON THE CIRCUMSTANCES , BE RESTRICTED BY THE PROHIBITIONS CONTAINED IN THE TREATY .

INASMUCH AS IT CONTAINS AN EXCEPTION TO ONE OF THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET , ARTICLE 36 IN FACT ADMITS OF EXCEPTIONS TO THE RULES ON THE FREE MOVEMENT OF GOODS ONLY TO THE EXTENT TO WHICH SUCH EXCEPTIONS ARE JUSTIFIED FOR THE PURPOSE OF SAFEGUARDING THE RIGHTS WHICH CONSTITUTE THE SPECIFIC SUBJECT- MATTER OF THAT PROPERTY .

2 . THE PROPRIETOR OF A TRADE-MARK WHICH IS PROTECTED IN ONE MEMBER STATE IS JUSTIFIED PURSUANT TO THE FIRST SENTENCE OF ARTICLE 36 IN PREVENTING A PRODUCT FROM BEING MARKETED BY A THIRD PARTY EVEN IF PREVIOUSLY THAT PRODUCT HAS BEEN LAWFULLY MARKETED IN ANOTHER MEMBER STATE UNDER ANOTHER MARK HELD IN THE LATTER STATE BY THE SAME PROPRIETOR .

NEVERTHELESS SUCH PREVENTION MAY CONSTITUTE A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 OF THE TREATY IF IT IS ESTABLISHED THAT THE PROPRIETOR OF DIFFERENT MARKS HAS FOLLOWED THE PRACTICE OF USING SUCH MARKS FOR THE PURPOSE OF ARTIFICIALLY PARTITIONING THE MARKETS .