Keywords
Summary

Keywords

1 Preliminary rulings - Jurisdiction of the Court - Interpretation of an international agreement concluded by the Community and having a bearing on the application by national courts of Community provisions - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)

(EC Treaty, Art. 177; TRIPs Agreement, Art. 50; Council Regulation No 40/94, Art. 99)

2 International agreements - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) - `Provisional Measure' - Definition - National measure falling within the scope of that definition

(TRIPs Agreement, Art. 50)

Summary

3 The Court has jurisdiction, in the context of the procedure under Article 177 of the Treaty, to interpret Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation (WTO), approved on behalf of the Community, as regards matters within its competence, in Decision 94/800.

Article 50(1) of the TRIPs Agreement requires that judicial authorities of the contracting parties be authorised to order `provisional measures' to protect the interests of proprietors of trade-mark rights conferred under the laws of those parties and under Article 99 of Regulation No 40/94 on the Community trade mark, in force when the WTO Agreement was signed, rights arising from a Community trade mark may be safeguarded by the adoption of `provisional, including protective, measures'. Although it is true that the measures envisaged by Article 99 and the relevant procedural rules are those provided for by the domestic law of the Member State concerned for the purposes of the national trade mark, since the Community is a party to the TRIPs Agreement and since that Agreement applies to the Community trade mark, the courts referred to in Article 99 of Regulation No 40/94, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under a Community trade mark, are required to do so, as far as possible, in the light of the wording and purpose of Article 50 of the TRIPs Agreement.

4 A measure whose purpose is to put an end to alleged infringements of a trade-mark right and which is adopted in the course of a procedure distinguished by the following features:

- the measure is characterised under national law as an `immediate provisional measure' and its adoption must be required `on grounds of urgency',

- the opposing party is summoned and is heard if he appears before the Court,

- the decision adopting the measure is reasoned and given in writing following an assessment of the substance of the case by the judge hearing the interim application,

- an appeal may be lodged against the decision, and

- although the parties remain free to initiate proceedings on the merits of the case, the decision is usually accepted by the parties as a `final' resolution of their dispute,

is to be regarded as a `provisional measure' within the meaning of Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, as set out in Annex 1 C of the agreement establishing the World Trade Organisation, approved on behalf of the Community, as regards matters within its competence, in Decision 94/800, since that article applies to `prompt and effective' measures whose purpose is to `prevent an infringement of any intellectual property rights from occurring'.

Having regard to its characterisation under national law, the reason for its adoption and the fact that it is not regarded as definitive in law, such a measure meets the definition in Article 50 of the TRIPs Agreement and the other characteristics of that order cannot affect that conclusion.