(e)‘prepacked food’ means any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging; ‘prepacked food’ does not cover foods packed on the sales premises at the consumer’s request or prepacked for direct sale.

That case-law, developed in relation to three-dimensional trade marks consisting of the appearance of the product itself or the packaging of goods, such as liquids, which are packaged in trade for reasons linked to the very nature of the product, also applies when the trade mark for which registration is sought is an ‘other’ mark consisting of the specific appearance of the surface of the packaging of a liquid product.

In particular, when, as in the present case, the trade mark for which registration is sought consists of the three-dimensional shape of the packaging of the goods in question – a fortiori where the goods, because of their very nature, must be packaged in order to be marketed, so that the packaging chosen imposes its shape on the goods and, for the purposes of examining an application for registration as a mark, must be assimilated to the shape of the product (Henkel, supra, paragraph 33) –, the relevant norm or customs may be those which apply in the sector of the packaging of goods which are of the same type and intended for the same co ...[+++]nsumers as those goods in respect of which registration is sought.

While the Commission sees the environmental benefit of charging a deposit and of taking back packaging, it believes that the way in which the deposit and return systems function in Germany constitutes a disproportionate barrier to the free movement of packaged beverages from other Member States, in violation of the Treaty's Internal Market rules (Article 28) and of Article 7 of Directive 94/62/EC (the "Packaging Directive"). These measures particularly affect imported drinks, given that, for reasons mainly related to long distance deliveries, some 95 per cent of imported drinks are in 'one way' packaging. The Commission's request will take the form of a reasoned opinion, the second step of an infringement procedure under Article 226 of the ...[+++]EC Treaty. If Germany does not respond satisfactorily within two months, the Commission could decide to take the case to the European Court of Justice.

After considering Germany's response to an initial request for information sent in October 2003, the European Commission has now decided to send Germany a formal request to change the rules in its packaging law ("Verpackungsverordnung") on the deposit and return of one-way packaging (typically cans and plastic bottles).

For example, in order to guarantee the expected environmental benefits, the Commission has accepted that the firm should be able to ask its partners to ensure that they act without fault in recovering household packaging.