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	Číslo (Kód CELEX): Number (CELEX Code):		61981J0144

	Název: Title:		JUDGMENT OF THE COURT, 14 SEPTEMBER 1982. KEURKOOP BV V NANCY KEAN GIFTS BV. REFERENCE FOR A PRELIMINARY RULING FROM THE GERECHTSHOF, THE HAGUE. PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY - DESIGNS - FREE MOVEMENT OF SIMILAR PRODUCTS. CASE 144/81.

	Publikace: Publication:		REPORTS OF CASES 1982 PAGES 2853 - 2875

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF GOODS;QUANTITATIVE RESTRICTIONS;MEASURES HAVING EQUIVALENT EFFECT;COMPETITION;RULES APPLYING TO UNDERTAKINGS;INDUSTRIAL AND COMMERCIAL PROPERTY;

	Související předpisy: Corresponding acts:		157E030;157E036

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		[88] Centrafarm I Case 15/74 Centrafarm v Sterling [1974] ECR 1146 · [88a] Centrafarm II Case 16/74 Centrafarm v Winthrop [1974] ECR 1183 · Renault Case 53/87 Renault [1988] ECR 6039 · [453a] Volvo Case 238/87 Volvo v Veeg [1988] ECR 6211 · [117] Terrapin Case 119/75 Terrapin v Terranova [1976] ECR 1039


	Plný text: Fulltext:		Ne

Fakta:
Nancy Kean Gifts BV (hereinafter “Nancy Kean Gifts”), a company whose registered office is at The Hague, sells a ladies’ handbag in the Netherlands. In 1979, Nancy Kean Gifts filed the design of said bag with the Benelux Designs Office. The Benelux Designs Office is the competent authority for the registration of designs under the Uniform Benelux Law on Designs (“the Uniform Law”). Nancy Kean Gifts is not the author of the design in question nor did it file the design with consent of the author or a person entitled under him as regards the Benelux territory or as a result of any legal connection with any such person. The registration was, none the less, effected because under the Uniform Law protection is afforded to the first person to file the design and irrespective of the question whether that person is the author of the design or a person entitled under him. The reason for this rule is to be found in the function of the right to the design in economic life and in a concern for simplicity and efficacy. However, the author may claim under the Uniform Law the right to its registration during a period of five years and may at any time claim to have the registration annulled.
In 1980 Nancy Kean Gifts found that Keurkoop BV (“Keurkoop”), another Netherlands company with registered office in Rotterdam, was offering a ladies’ handbag the appearance of which it considered to be identical with the design which it was itself selling. Nancy Kean Gifts therefore commenced proceedings for an injunction against Keurkoop before the Netherlands courts.
The Gerechtshof (Regional Court of Appeal), The Hague, seised of the case, considered a preliminary ruling of the Court of Justice necessary in order to decide the case. It therefore stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the questions - as reworded by the Court - (1) whether the provisions of Article 36 allow the application of a national law which gives an exclusive right to the first person to file a design, without persons other than the author or those claiming under him being entitled, in order to challenge the exclusive right or defend an action for an injunction brought by the holder of the right, to contend that the person filing the design is not the author of it, the person who commissioned the design from him or his employee and (2) whether, in view of the provisions of the Treaty the owner of an exclusive right to a design protected by the legislation of a Member State may rely on that legislation in order to oppose the importation of products, whose appearance is identical to the design which has been filed, from one of the Member States of the Community where their marketing does not infringe any right of the owner to the exclusive right in the country of importation.

Názor soudu a komentář:
While with respect to other types of industrial and commercial property, such as patents and trade marks, the Court has itself defined the “specific subject matter” of such property, it does not give such general definition with respect to the right to a design which was in issue in the present case. The Court rather examines whether the national law affords the person who filed the design exclusive rights. The protection of designs comes under the protection of industrial and commercial property within the meaning of Article 36 inasmuch as its aim is to define exclusive rights which are the characteristic of that property. The reason for this different approach lies in the fact that for designs, different from other kinds of industrial and commercial property, the national laws have not been standardized by way of international agreements neither have they been harmonized by the Community.
The Court is satisfied that the protection afforded by the Uniform Law amounts to such exclusive right (see also
Renault;
[453a]
Volvo)
. The national court wondered, however, whether the Uniform law comes within the scope of Article 36, given the fact that it prevented other persons than the author from claiming that the person filing the design is not the author, the person commissioning under him or his employer. “On that issue the Court can only state that in the present state of Community law and in the absence of Community standardization or of a harmonization of the laws the determination of the conditions and procedures under which protection of designs is granted is a matter for the national rules (…). Consequently the rules on the free movement of goods do not constitute an obstacle to the adoption of provisions of the kind contained in the Uniform Benelux Law on Designs, as described by the national court.”
With respect to the second question, the Court relies on its established principles on the interpretation of Article 36 (see e.g. [88]
Centrafarm I
; [88a]
Centrafarm II
). The Court has consistently held that Article 36, constituting a derogation of the general principle of free movement of goods, is to be construed narrowly. The Court emphasizes, in particular, that Article 36 expressly provides that the prohibitions and restrictions on imports resulting from the national rules on the protection of industrial and commercial property must not constitute disguised restrictions on trade between Member States. “Article 36 is thus intended to emphasize that the reconciliation between the requirements of the free movement of goods and the respect to which industrial and commercial property rights are entitled must be achieved in such a way that protection is ensured for the legitimate exercise in the form of prohibitions on imports which are ‘justified’ within the meaning of that article, of the rights conferred by national legislation, but is not refused, on the other hand, in respect of any improper exercise of the same rights which is of such nature as to maintain or to establish artificial partitions within the common market. The exercise of industrial and commercial property rights conferred by national legislation must consequently be restricted as far as is necessary for that reconciliation” (see also [117 ]
Terrapin
). In particular, the restrictions to the free movement of goods can be justified under Article 36 only in so far as they are intended to safeguard the rights which constitute the specific subject matter of this property. The proprietor may therefore not oppose the importation of a product which has been lawfully marketed in another Member State by, or with consent of the proprietor of the right himself or a person legally or economically dependent on him.

Shrnutí (Summary of the Judgment):
1. THE PROTECTION OF DESIGNS COMES UNDER THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY WITHIN THE MEANING OF ARTICLE 36 INASMUCH AS ITS AIM TO DEFINE EXCLUSIVE RIGHTS WHICH ARE CHARACTERISTIC OF THAT PROPERTY.

2. IN THE ABSENCE OF COMMUNITY STANDARDIZATION OR A HARMONIZATION OF LAWS THE DETERMINATION OF THE CONDITIONS AND PROCEDURES UNDER WHICH PROTECTION OF DESIGNS IS GRANTED IS A MATTER FOR THE NATIONAL RULES OF EACH MEMBER STATE. IN ITS PRESENT STATE COMMUNITY LAW DOES NOT PRECLUDE THE ADOPTION OF NATIONAL PROVISIONS TO THE EFFECT THAT THE PERSON WHO FIRST FILES THE DESIGN ACQUIRES THE EXCLUSIVE RIGHT TO IT WITHOUT ITS BEING NECESSARY TO INQUIRE WHETHER THAT PERSON IS ALSO THE AUTHOR OF THE DESIGN OR A PERSON ENTITLED UNDER HIM AND WITHOUT THOSE CONCERNED BEING ENTITLED TO ALLEGE THAT THE PERSON FILING THE DESIGN IS NOT THE AUTHOR, THE PERSON COMMISSIONING HIM OR HIS EMPLOYER.

3. ALTHOUGH A RIGHT TO A DESIGN, AS A LEGAL ENTITY, DOES NOT AS SUCH FALL WITHIN THE CLASS OF AGREEMENTS OR CONCERTED PRACTICES ENVISAGED BY ARTICLE 85 (1), THE EXERCISE OF THAT RIGHT MAY BE SUBJECT TO THE PROHIBITIONS CONTAINED IN THE TREATY WHEN IT IS THE PURPOSE, THE MEANS OR THE RESULT OF AN AGREEMENT, DECISION OR CONCERTED PRACTICE.

4. THE PROPRIETOR OF A RIGHT TO A DESIGN ACQUIRED UNDER THE LEGISLATION OF A MEMBER STATE MAY PREVENT THE IMPORTATION OF PRODUCTS FROM ANOTHER MEMBER STATE WHICH ARE IDENTICAL IN APPEARANCE TO THE DESIGN WHICH HAS BEEN FILED, PROVIDED THAT THE PRODUCTS IN QUESTION HAVE NOT BEEN PUT INTO CIRCULATION IN THE OTHER MEMBER STATE BY, OR WITH THE CONSENT OF, THE PROPRIETOR OF THE RIGHT OR A PERSON LEGALLY OR ECONOMICALLY DEPENDENT ON HIM, THAT AS BETWEEN THE NATURAL OR LEGAL PERSONS IN QUESTION THERE IS NO KIND OF AGREEMENT OR CONCERTED PRACTICE IN RESTRAINT OF COMPETITION AND FINALLY THAT THE RESPECTIVE RIGHTS OF THE PROPRIETORS TO THE RIGHT TO THE DESIGN IN THE VARIOUS MEMBER STATES WERE CREATED INDEPENDENTLY OF ONE ANOTHER.

Plný text judikátu (Entire text of the Judgment):