Benelux 6 December 1999 Cour de Justice (Kipling v. GB Unic.)
[Cite as: http://cisgw3.law.pace.edu/cases/991206bx.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: A 98/1/16
CASE HISTORY: Tribunal de commerce de Termonde of Belgium seeks guidance from the Cour de Justice Benelux on various points of law.
SELLER'S COUNTRY: Belgium (plaintiff)
BUYER'S COUNTRY: United States (customer of buyer is defendant)
GOODS INVOLVED: Bags and related goods
APPLICATION OF CISG: No
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
Parallel imports. Kipling S.A.("Kipling"), a Belgian Company, manufactures bags and related goods, and is the registered owner of the trademark "KIPLING" ("the Trademark"). The bags are sold in the European Union ("E.U.") and in the United States of America ("U.S."), with slight variations in the products to differentiate between the two markets.
Kipling sold the goods in dispute, which were intended for the U.S. market to its U.S. based distributor and the goods were transported to the U.S. The U.S. based distributor (who was not a party to the proceedings), subsequently sold the goods in dispute to the Belgian Company S.A Parimpex ("Parimpex"), who proceeded to on-sell the goods to another Belgian Company S.A. GB Unic. ("GB Unic"). GB Unic sells the goods in dispute in Belgium. Kipling brought proceedings against Parimpex and GB Unic for trademark infringement, and sought an order, amongst other things, that Parimpex and GB Unic cease using the Trademark. However, article 13.A.8 of the Benelux Uniform Trademark Law (Loi uniforme Benelux sur les marques) provides that a registered trademark owner's exclusive right to use the trademark does not permit the trademark owner to prevent use of the trademark on goods which have been placed in the E.U market by or with the consent of the trademark owner.
The court at first instance (the Tribunal de commerce de Termonde), sought guidance from the Cour de Justice Benelux on various points of law, including as to whether or not the notion of "placed in the market" corresponds with the term "placed at the disposal of the Buyer" under the CISG (no specific article of the Convention was identified).
The phrase "placing" [or "places"] the goods at the buyer's disposal is encountered at article 31(b) and (c) and article 58(1) of CISG. The phrase "placed at the [buyer]'s disposal" or "placed at the disposal of the buyer" is encountered in articles 69 and 86(2) CISG.
The Advocate General at pages 8 to 10 of his Opinion determined that the meaning of the term "placed in the market" was to be assessed in application of the Benelux Uniform Trademark Law, the First Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trademarks (OJ EC No L 40 of 11.2.1989, p. 1), and on the basis of several decisions of the European Court of Justice.
As to the use of the CISG as a tool for understanding the meaning of the term "placed in the market", the Advocate General commented only at page 11 that it was for the Tribunal at first instance to interpret the CISG in assessing whether the notion of "to place the goods at the disposal of the buyer" under the CISG meant the physical placement of the goods in the market as is required under the relevant trademark law.
The Cour de Justice Benelux declined to determine whether the relevant term under the Benelux Uniform Trademark Law corresponded with the CISG, on the basis that it was not competent to interpret the CISG.Go to Case Table of Contents
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (French and Dutch): Click here for French texts (pdf presentation) of Conclusions de avocat géneralé, filed with the Court on 6 May 1999, and Opinion of the Court, dated 6 December 1999
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents