03/02/2020 CURIA - Documents I‑0000, paragraph 69). Indeed, if the fact that an online marketplace is accessible from that territory were sufficient for the advertisements displayed there to be within the scope of Directive 89/104 and Regulation No 40/94, websites and advertisements which, although obviously targeted solely at consumers in third States, are nevertheless technically accessible from EU territory would wrongly be subject to EU law. It therefore falls to the national courts to assess on a case-by-case basis whether there are any relevant factors on the basis of which it may be concluded that an offer for sale, displayed on an online marketplace accessible from the territory covered by the trade mark, is targeted at consumers in that territory. When the offer for sale is accompanied by details of the geographic areas to which the seller is willing to dispatch the product, that type of detail is of particular importance in the said assessment. In the case before the referring court, the website with the address ‘www.ebay.co.uk’ appears, in the absence of any evidence to the contrary, to be targeted at consumers in the territory covered by the national and Community trade marks relied on; the offers for sale on that website which form the subject-matter of the main proceedings therefore fall within the scope of the EU rules on intellectual property. Accordingly, the answer to the seventh question referred is that where goods located in a third State, which bear a trade mark registered in a Member State of the EU or a Community trade mark and have not previously been put on the market in the EEA or, in the case of a Community trade mark, in the EU, (i) are sold by an economic operator through an online marketplace without the consent of the trade mark proprietor to a consumer located in the territory covered by the trade mark or (ii) are offered for sale or advertised on such a marketplace targeted at consumers located in that territory, the trade mark proprietor may prevent that sale, offer for sale or advertising by virtue of the rules set out in Article 5 of Directive 89/104 or in Article 9 of Regulation No 40/94. It is the task of the national courts to assess on a case-by-case basis whether relevant factors exist, on the basis of which it may be concluded that an offer for sale or an advertisement displayed on an online marketplace accessible from the territory covered by the trade mark is targeted at consumers in that territory. 3. The offer for sale of testers and dramming products It is common ground that, at the time of the facts considered by the referring court, the individual defendants also offered for sale, on the website www.ebay.co.uk, testers and dramming items which L’Oréal had supplied free of charge to its authorised distributors. By its first question, the referring court asks, in essence, whether the supply by the proprietor of a trade mark of items bearing that mark, intended for demonstration to consumers in authorised retail outlets, and of bottles also bearing the mark from which small quantities can be taken for supply to consumers as free samples amounts to those goods being put on the market within the meaning of Directive 89/104 and Regulation No 40/94. The referring court found in that regard that L’Oréal had clearly indicated to its authorised distributors that they could not sell such items and bottles, which in any case were often marked ‘not for sale’. As the Court has already held, where the proprietor of a trade mark affixes that mark to items that it gives away, free of charge, in order to promote the sale of its goods, those items are not distributed in any way with the aim of them penetrating the market (see Case C‑495/07 Silberquelle [2009] ECR I-137, paragraphs 20 to 22). Where such items are supplied free of charge, they thus cannot, as a rule, be regarded as being put on the market by the trade mark proprietor. The Court has also stated that when a trade mark proprietor marks items such as perfume testers with the words ‘demonstration’ or ‘not for sale’, that precludes, in the absence of any evidence to the contrary, a finding that that proprietor impliedly consented to those items being put on the market (see Coty Prestige Lancaster Group, paragraphs 43, 46 and 48). Accordingly, the answer to the first question is that where the proprietor of a trade mark supplies to its authorised distributors items bearing that mark, intended for demonstration to consumers in authorised retail outlets, and bottles bearing the mark from which small quantities can be taken for supply to consumers as free samples, those goods, in the absence of any evidence to the contrary, are not put on the market within the meaning of Directive 89/104 and Regulation No 40/94. 4. The marketing of unboxed goods As has been explained in paragraphs 36, 37 and 51 of this judgment, some of the items bearing L’Oréal’s trade marks were sold, by sellers operating by means of eBay’s marketplace, without packaging. By its second to fourth questions, the referring court seeks, in essence, to ascertain whether the removal of the packaging of goods such as those at issue in the main proceedings infringes the exclusive right of the proprietor of the trade mark affixed to those goods, thus entitling the proprietor to oppose the resale of goods whose packaging has been so removed. In view of the fact that the unboxed goods at issue in the main proceedings are, for the most part, cosmetics, the referring court requests that these questions be answered in the light of Article 6(1) of Directive 76/768, under which cosmetic products may be marketed only if the container and packaging mention, inter alia, the identity of the manufacturer or the person responsible for marketing the product, the composition of the product (content and list of ingredients), the use of the product (function and particular precautions to be observed in use) and preservation of the product (date of minimum durability). In that regard, it seeks, in essence, to ascertain whether the proprietor of a trade mark may, by virtue of its exclusive right under Directive 89/104 or, in the case of a Community trade mark, under Regulation No 40/94, oppose the resale of products bearing that mark when those sales take place without the requirements of Article 6(1) of Directive 76/768 being met. L’Oréal submits, as do the French, Polish and Portuguese Governments and the Commission, that, irrespective of whether or not there is an infringement of Directive 76/768, the packaging is an essential part of the image of perfumes and cosmetics. The proprietor of the trade mark affixed to those goods and to their packaging should, as a consequence, be able to oppose the resale of those goods in an unboxed state. By contrast, eBay argues that, in the perfumes and cosmetics sector, it is often the bottle or the product’s container, and not the packaging, which conveys the image of prestige and luxury. curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 8/15