Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

Intellectual Property*

W. R. CORNISH


I. Case C-10/89, Hag GF v CNL-Sucal

The decision of the Court of Justice which dominates the field of intellectual property for 1990 is Hag-II.1 It tackles the most vexed issue which has to date arisen in determining how far, in face of the policy of free movement of goods, intellectual property rights may be used to prevent the importation of goods into one Member State from another. This is the question whether, if a trade mark separately owned in the two States nevertheless had a 'common origin', the right in one of the States cannot be used to prevent goods from being moved from the other, if they were legitimately given the mark there. As is all too well known, in its Hag-I decision of 1974 the Court gave a positive answer to this question.2 Now it has demonstrated its capacity to reconsider its earlier jurisprudence and indeed to respond to external criticism. The circumstances in which it has had to do so were exceptional. Without the matter being res judicata, the new case is unquestionably a second round in the battle of which the 1974 decision was the first.


A. THE CIRCUMSTANCES OF THE TWO CASES

Hag Bremen built its business in decaffeinated coffee around a novel process, originally patented. It registered 'Hag' as its mark in Germany in 1907, and in Belgium and Luxembourg in 1908. In 1927 it set up a wholly-owned subsidiary in the latter countries and transferred the local marks to the subsidiary. In 1944 the assets of the latter, including those local marks, were expropriated by the Belgian Government for disposal as enemy property, and this was done in 1945 to a Belgian family business. By the time of Hag-I the Belgian owner was Van Zuylen Frères and for the events leading to Hag-II it was CNL-Sucal, a Jacobs-Suchard subsidiary.

The 1974 case was precipitated by Hag Bremen which sought to return to the Benelux market, using its own mark in the same manner as on its German decaffeinated coffee. It exported directly to Luxembourg and was met by an action for infringement of trade mark there brought by Van

____________________
*
Ω W. R. Cornish, 1991. Professor of Law, University of Cambridge.
1
Case C-10/89, Hag GF v CNL-Sucal [ 1990] ECR I-3711.
2
Case 192/73, Van Zuylen Frères v Hag AG [ 1974] ECR 731. For criticism of this decision in the light of the Court's recent case-law, see e.g., Demaret, 18IIC161 ( 1987). In face of this criticism, the Court may have limited the scope of the rule so as to cause it to apply only where importation is taking place into the country where the trade mark has been divided off: see case 51/75 EMI Records Ltd v CBS UK Ltd [ 1976] ECR 811, judgment, para 21.

-469-

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