Mr Reed has since 1970 sold football souvenirs and memorabilia, almost all marked with signs referring to Arsenal FC, from several stalls situated outside the club's stadium. He informs his customers that these are not official products by means of a notice clearly stating the origin of the products.

Arsenal FC accused Mr Reed of selling products using signs identical with the registered ones, and therefore brought proceedings in tort and for trade mark infringement.

The High Court of Justice dismissed Arsenal FC's action in tort on the ground that they had not been able to prove the existence of actual confusion in the minds of supporters between the unofficial products sold by Mr Reed and those coming from Arsenal FC.

As regards the infringement action, the court referred two questions on the interpretation of Community trade mark law to the Court of Justice of the European Communities for a preliminary ruling.

These raised the question of whether the proprietor of a validly registered trade mark may prevent the use of his trade mark by a third party in the course of trade on products identical to those for which it is registered, where the use does not involve any indication of the origin of the goods.

They also concerned the effect on the trade mark proprietor's rights of the fact that the use may be perceived by the public as a badge of support for or loyalty or affiliation to the proprietor of the mark.

In its judgment, the Court of Justice points out that the essential function of a trade mark is to guarantee to consumers the real origin of goods or services by enabling them to distinguish them, without any possibility of confusion, from those of different origin.

Trade marks thus play an essential part in the system of competition.

They must constitute a guarantee, first, that the goods and services designated have all been manufactured or supplied under the control of a single undertaking and, second, that that single undertaking is responsible for their quality. This guarantee of origin can be ensured only if the trade mark is protected against competitors wishing to take unfair advantage of its status and reputation by selling goods which are not originals.

However, this protection is limited to cases where the use of the sign by a third party affects or is liable to affect the functions of the trade mark, in particular the function of guaranteeing the origin of the goods.

As regards the products sold by Mr Reed, a risk of confusion in the minds of supporters as to the origin of the products cannot be ruled out. In particular, the notice on Mr Reed's stall stating that the goods are not official products does not guarantee that there is no confusion. Once the unofficial products have left the stall where the notice is, some consumers may interpret them as original Arsenal FC club products.

Consequently, where it is found that a third party is using in the course of trade a sign which is identical with a validly registered trade mark on goods which are identical with those for which it is registered, the proprietor of the mark may prevent that use. It is immaterial that the sign is perceived by the public as a badge of support for or loyalty or affiliation to the proprietor of the trade mark.

Unofficial document for media use, not binding on the Court of Justice Available in Dutch, English, French, German, Greek, Italian, Portuguese and Spanish For the full text of the judgment, please consult our Internet page www.curia.eu.int  at about 3 pm today For further information please contact Isabelle Guibal: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731