Germany has one of the strongest laws in Europe relating to consumer protection. As a result of this the Estee Lauder Company has for many years refrained from using the trademark CLINIQUE in Germany so as to avoid the risk of an action being brought against it on the ground that the mark implied a medical effect which was not possessed by the products in question, which are cosmetics and toiletries. The CLINIQUE mark is, however, used for cosmetics in most other European countries. Estee Lauder recently decided, in order to reduce packaging and marketing costs, to start using the CLINIQUE mark in Germany.

A German trade association duly brought an action against Estee Lauder to prevent such use of the CLINIQUE mark in Germany on the ground that this could deceive the public into believing that goods bearing the mark had clinical properties. The issue was ultimately referred to the European Court of Justice on the question of whether the application of German law on this topic was compatible with Article 30 of the Treaty of Rome that enshrines the free flow of goods principle of that treaty, exceptions to this principle being permitted only on certain public policy grounds. The court held that no such public policy grounds justified prohibition of the import into Germany from other EU member states of cosmetics bearing the CLINIQUE trademark. Support for this conclusion existed since the manner of sale of CLINIQUE products in no way suggested that the goods were anything other than cosmetics and use of the mark in other EU member states had clearly not resulted in any confusion among customers in such countries where the mark had been used on cosmetic products.

June 1994 Index