C-228/03

The Gillette Company et al v LA-Laboratories Ltd OY

The Korkein oikeus submits the following questions to the Court of Justice of the European Communities as a reference for a preliminary ruling:

When applying Article 6(1)(c) of the First Council Directive 89/104/ECC to approximate the laws of the Member States relating to trade marks:

(1) What are the criteria

(a) on the basis of which the question of regarding a product as a spare part or accessory is to be decided, and

(b) on the basis of which those products to be regarded as other than spare parts and accessories which can also fall within the scope of the said subparagraph are to be determined?

(2) Is the permissibility of the use of a third party's trademark to be assessed differently, depending on whether the product is like a spare part or accessory or whether it is a product which can fall within the scope of the said paragraph on another basis?

(3) How should the requirement that the use must be "necessary" to indicate the intended purpose of a product be interpreted? Can the criterion of necessity be satisfied even though it would in itself be possible to state the intended purpose without an express reference to the third party's trade mark, be merely mentioning only for instance the technical principle of functioning of the product? What significance does it have in that case that the statement may be more difficult for consumers to understand if there is no express reference to the third party's trade mark?

(4) What factors should be taken into account when assessing accordance with honest commercial practice? Does the mentioning of a third party's trade mark in connection with the marketing of one's own product constitute a reference to the fact that the marketer's own product corresponds, in quality and technically or as regards its other properties, to the product designated by the third party's trade mark?

(5) Does it affect the permissibility of the use of a third party's trade mark that the economic operator who refers to the third party's trade mark also markets, in addition to a spare part or accessory, a product of his own which that spare part or accessory is intended to be used with?