C-127/09

Coty Prestige Lancaster Group GmbH v Simex Trading AG

The following question is referred to the Court of Justice of the European Communities under Article 234 EC for a preliminary ruling:

Are goods “put on the market” within the meaning of Article 13(1) of Regulation 40/94 and Article 7(1) of Directive 89/104EEC if “perfume testers” are made available, without transfer of ownership, to contractually bound intermediaries. These testers allow potential customers to use the contents for test purposes and there is a prohibition on their sale: the goods bearing a notice to this effect. The packaging of the goods is significantly different from the packaging used when the goods are usually put on the market. Under the contract, the goods may be recalled by the manufacturer/ trade mark owner at any time.