## Facts

- Hermès International owned well-known HERMÈS trademarks used on luxury goods, including neckties.
- FHT Marketing Choice BV allegedly sold and marketed neckties bearing the HERMÈS mark without authorization in the Netherlands.
- Hermès sought interim relief in summary proceedings before the District Court of Amsterdam to stop the alleged infringement.
- The Dutch court issued an interim injunction prohibiting FHT’s use of the HERMÈS marks.
- Hermès requested that the injunction include a defined period within which FHT would have to initiate proceedings on the merits to seek revocation, invoking TRIPS Article 50(6).
- The Dutch court referred questions for a preliminary ruling on the interpretation of TRIPS Article 50(6) in the context of provisional measures for enforcement of a Community trade mark under Regulation 40/94.

## Issues

1. Whether the EU court had jurisdiction to interpret TRIPS Article 50 in a reference concerning provisional measures ordered by a national court to protect a Community trade mark.
2. Whether a Dutch summary-proceedings injunction prohibiting trademark use qualifies as a “provisional measure” under TRIPS Article 50, triggering Article 50(6)’s requirement that such measures cease if a merits action is not brought within a reasonable period.

## Decision

- The court held it had jurisdiction to interpret TRIPS Article 50 because TRIPS was approved on behalf of the Community and applies in the context of Community trade marks.
- The court held that national courts applying domestic procedural rules to grant provisional measures for Community trade marks must, as far as possible, do so in light of the wording and purpose of TRIPS Article 50.
- The court held the Dutch interim injunction constituted a “provisional measure” within the meaning of TRIPS Article 50 because it was urgent, protective, and non-definitive in law even if it could effectively resolve the dispute in practice.
- The court concluded that TRIPS Article 50(6) applies to such measures, requiring a mechanism under which the measure is revoked or ceases to have effect if proceedings on the merits are not commenced within a reasonable period set by national law or by the authority ordering the measure.
- The court did not decide the underlying trademark infringement dispute and did not set a specific time period; implementation was left to the referring court.
- The court expressly declined to rule on whether TRIPS Article 50 has direct effect.

## Legal Principles

- International agreements approved within the relevant competence of the Community may be interpreted in preliminary-ruling proceedings to secure uniform interpretation.
- Where domestic law governs provisional remedies for Community trade marks, national courts should interpret and apply that law, as far as possible, consistently with TRIPS Article 50’s text and objectives.
- A measure qualifies as a TRIPS Article 50 “provisional measure” when it is urgent, prompt and effective, aimed at preventing or stopping infringement, and is non-final in law notwithstanding practical effects.
- Under TRIPS Article 50(6), provisional measures must be subject to a safeguard: upon request of the defendant, the measures must be revoked or cease if a merits action is not initiated within a reasonable period fixed by national law or by the ordering authority.
- A court may interpret TRIPS for conformity purposes without deciding whether the relevant TRIPS provision is directly effective.

## Conclusion

The court confirmed its authority to interpret TRIPS Article 50 for national courts granting interim protection for Community trade marks and held that urgent Dutch summary-proceedings injunctions are “provisional measures” under TRIPS, so they must be tied to a reasonable-period mechanism ensuring the measure ends if timely merits proceedings are not brought.


Hermès Int’l v. FHT Mktg. Choice BV, 1998 E.T.M.R. 425 (C.J.E.C. 1998)