Arsenal Football Club plc, a well-known English football club, has registered a number of trade marks, including the word “Arsenal”, to distinguish items of clothing.

Mr Reed is a trader who, since 1970, has been selling scarves outside that team's football ground. The word “Arsenal” appears prominently on them, although he states on a notice affixed to his stall that such goods are not official.

Arsenal brought proceedings against Mr Reed in the English courts. The High Court of Justice of England and Wales has referred two questions to the Court of Justice for a preliminary ruling on the 1988 trade mark directive. The national court seeks to ascertain whether the proprietor of a trade mark may prevent a third party from using an identical sign, even if the latter warns consumers that the sign is not intended to express identification or any kind of relationship with its proprietor and its use is perceived by the public as a badge of support, loyalty or affiliation to its proprietor.

The 1988 directive governs, among other things, the rights conferred by the mark on its proprietor.

Advocate General Ruiz-Jarabo delivers his Opinion today.

The view of the Advocate General is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.

According to the Advocate General, the directive enables the proprietor of a trade mark to prevent a third party from using signs which are identical to those of which the trade markconsists for identical goods or services which are capable of indicating its origin, provenance, quality or reputation, provided that such use is intended to be commercial use.

In the Advocate General's view, use of a trade mark by anyone other than the proprietor with the purpose of supplying goods or providing services in the market, even if it is perceived as a badge of support, loyalty or affiliation to its proprietor, constitutes commercial use. The decisive factors are whether the third party uses it in the course of trade and whether persons who purchase the goods or use the services which it represents do so because they identify it with the trade mark and, in certain cases, with the proprietor; the reasons for which they decide to do so are irrelevant.

In the specific case of football, the professional practice of the sport has taken on the features of an industry which moves a large volume of money and generates thousands of jobs. Bearing that in mind, Mr Ruiz-Jarabo considers that when a football club causes a sign to be entered in an industrial property register in order to use it as a trade mark and to market goods identified with it, it is making effective use of that property. Accordingly, it is entitled to object to third parties using it for commercial purposes by employing all the methods available under the law, including the most extreme.

Unofficial document for media use only; not binding on the Court of Justice. Available in German, English, French, Dutch, German, Italian and Spanish. For the full text of the opinion , please consult our Internet page www.curia.eu.int  at approximately 3pm today. For further information please contact Ms Cristina Sanz: Tel: (00 352) 4303 3367; Fax: (00 352) 4303 2668