«(Directive 89/104/EEC – Article 5(2) – Trade marks with a reputation – Protection against use of a sign in relation to identical or similar goods or services – Degree of similarity between the mark and the sign – Effect on the public – Sign viewed as an embellishment)»

1.. Approximation of laws – Trade marks – Directive 89/104 – Trade mark with a reputation – Option of providing protection for extending to non-similar goods or services (Article 5(2) of the directive) – Obligation on Member States exercising this option to also provide that protection in case of use of a sign for goods or services which are identical or similar (Council Directive 89/104, Art. 5(2))

2.. Approximation of laws – Trade marks – Directive 89/104 – Trade mark with a reputation – Protection of the trade mark extended to non-similar goods or services (Article 5(2) of the directive) – Degree of similarity between the mark and the later sign (Council Directive 89/104, Art. 5(2))

3.. Approximation of laws – Trade marks – Directive 89/104 – Trade mark with a reputation – Protection of the trade mark extended to non-similar goods or services (Article 5(2) of the directive) – Perception of the later sign by the relevant section of the public as an embellishment – Effect (Council Directive 89/104, Art. 5(2))

JUDGMENT OF THE COURT (Sixth Chamber) 23 October 2003 (1)

((Directive 89/104/EEC – Article 5(2) – Trade marks with a reputation – Protection against use of a sign in relation to identical or similar goods or services – Degree of similarity between the mark and the sign – Effect on the public – Sign viewed as an embellishment))

In Case C-408/01,

REFERENCE to the Court under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 approximating the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann (Rapporteur), F. Macken, N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: F.G. Jacobs,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Adidas Salomon AG and Adidas Benelux BV, represented by C. Gielen; Fitnessworld Trading Ltd, represented by D.J.G. Visser; the United Kingdom Government, represented by K. Manji, acting as Agent, and M. Tappin, and the Commission, represented by N.B. Rasmussen and F. Tuytschaever, advocaat, at the hearing on 3 April 2003,

after hearing the Opinion of the Advocate General at the sitting on 10 July 2003,

gives the following

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Hoge Raad der Nederlanden by judgment of 12 October 2001, hereby rules:

Puissochet

Gulmann

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 23 October 2003.

R. Grass

V. Skouris

Registrar

President