03/02/2020 CURIA - Documents In the first place, having regard to the wide variety of perfumes and cosmetics, the question whether the removal of the packaging of such goods harms their image – and thus the reputation of the trade mark that they bear – must be examined on a case-by-case basis. As the Advocate General observed at points 71 to 74 of his Opinion, where perfumes or cosmetics are displayed without packaging, that may sometimes effectively convey the image of the product as a prestige or luxury product, whilst, in other cases, removing the packaging has precisely the effect of harming that image. Such damage may occur when the packaging is as important as, or more important than, the bottle or the container in the presentation of the image of the product created by the trade mark proprietor and his authorised distributors. It may also be the case that the absence of some or all the information required by Article 6(1) of Directive 76/768 harms the product’s image. It is for the trade mark proprietor to establish the existence of the constituent elements of such harm. In the second place, a trade mark, the essential function of which is to provide the consumer with an assurance as to the identity of the product’s origin, serves in particular to guarantee that all the goods bearing the mark have been manufactured or supplied under the control of a single undertaking which is responsible for their quality (see, inter alia, Case C-206/01 Arsenal Football Club [2002] ECR I‑10273, paragraph 48, and Case C‑59/08 Copad [2009] ECR I‑3421, paragraph 45). When certain information, which is required as a matter of law, such as information relating to the identity of the manufacturer or the person responsible for marketing the cosmetic product, is missing, the trade mark’s function of indicating origin is impaired in that the mark is denied its essential function of guaranteeing that the goods that it designates are supplied under the control of a single undertaking which is responsible for their quality. In the third and final place, as the Advocate General has observed at point 76 of his Opinion, the question whether or not the offer for sale, or the sale, of trade-marked goods without their packaging and thus without certain information required under Article 6(1) of Directive 76/768 is a criminal offence under national law does not affect the applicability of EU rules concerning intellectual property protection. In view of the foregoing, the answer to the second to fourth questions is that Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark may, by virtue of the exclusive right conferred by the mark, oppose the resale of goods such as those at issue in the main proceedings, on the ground that the person reselling the goods has removed their packaging, where the consequence of that removal is that essential information, such as information relating to the identity of the manufacturer or the person responsible for marketing the cosmetic product, is missing. Where the removal of the packaging has not resulted in the absence of that information, the trade mark proprietor may nevertheless oppose the resale of an unboxed perfume or cosmetic product bearing his trade mark, if he establishes that the removal of the packaging has damaged the image of the product and, hence, the reputation of the trade mark. B – The fifth and sixth questions concerning the advertisement by the operator of an online marketplace of its website and the goods offered on it It is clear from the facts in the main proceedings, summarised at paragraphs 39 to 42 of this judgment, that eBay, by selecting in the Google search engine keywords corresponding to L’Oréal trade marks, caused to appear, as soon as internet users performed a search including those words with that search engine, a sponsored link to the website www.ebay.co.uk, accompanied by a marketing message about the opportunity to buy, via that site, goods bearing the trade mark searched for. That advertising link appeared in the ‘sponsored links’ section, located on either the right-hand side, or on the upper part, of the screen showing the search results displayed by Google. It is not disputed that, in such a situation, the operator of the online marketplace is an advertiser. The operator causes links and messages to be displayed which, as the Advocate General has stated in point 89 of his Opinion, advertise not only certain offers for sale on that marketplace but also that marketplace as such. The advertisements mentioned, from among other examples, by the referring court and set out at paragraphs 40 and 42 of this judgment are illustrative of that practice. By its fifth and sixth questions, which it is appropriate to consider together, the referring court asks, in essence, whether, on a proper construction of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, the proprietor of a trade mark is entitled to prevent an online marketplace operator from advertising – on the basis of a keyword which is identical to his trade mark and which has been selected in an internet referencing service by the operator without the proprietor’s consent – the marketplace and goods bearing that trade mark which are offered for sale on it. With regard to internet advertising on the basis of keywords corresponding to trade marks, the Court has already held that a keyword is the means used by an advertiser to trigger the display of his advertisement and is therefore use ‘in the course of trade’ within the meaning of Article 5(1) of Directive 89/104 and Article 9 of Regulation No 40/94 (Joined Cases C‑236/08 to C‑238/08 Google France and Google [2010] ECR I‑0000, paragraphs 51 and 52, and Case C‑278/08 BergSpechte [2010] ECR I‑0000, paragraph 18). In order to determine whether advertising of that type also meets the other conditions which must, according to the rules set out in Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, be met if the trade mark proprietor is to be able to prevent it, it is necessary to consider whether (i) advertisements such as those displayed by eBay by means of a referencing service such as that provided by Google are in relation to goods or services identical with those for which the trade mark is registered and (ii) whether such advertisements have an adverse effect on one of the functions of the mark or are liable to have such an effect (Bergspechte, paragraph 21). In that regard, the first point to make is that, in so far as eBay used keywords corresponding to L’Oréal trade marks to promote its own service of making an online marketplace available to sellers and buyers of products, that use was not made in relation to either (i) goods or services ‘identical with those for which the trade mark is registered’ within the meaning of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 or (ii) goods or services similar to those for which the trade mark is registered within the meaning of paragraph 1(b) of those articles. curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 9/15