1999, the Gerechtshof te's Gravenhage granted Shield Mark's application, which was based on the law of civil responsibility, but dismissed the claims based on trademark law, on the ground that it was the intention of the Governments of the Benelux states and their joint trademark law to preclude sound signs from being registered as trademarks. Thereupon Shield Mark appealed to the Hoge Raad der Nederlanden, the highest civil court of the Netherlands, which decided to stay proceedings and to refer two questions to the European Court of Justice under Article 234 EC for a preliminary ruling on the interpretation of Article 2 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks. First Question: Consistency with the EU Directive Part (a) of the first question asked whether Article 2 of the Directive must be interpreted as precluding sound signs from being regarded as trademarks. If the answer was negative, the Hoge Raad asked by part (b) of its first question, whether Article 2 implies that sound signs must be capable of being regarded as trademarks. The ECJ responded that the purpose of Article 2(a) of the Directive is to define the types of signs of which a trademark may consist. That provision states that a trade mark may consist of "particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging ...". Thus only signs that are capable of being perceived visually are mentioned. That list is not exhaustive, however, as can be seen from the language of both Article 2 of the Directive and the seventh recital in the preamble thereto, which refers to a "list of examples" of signs of which a trade mark may consist. Consequently, that provision, although it does not mention signs that are not in themselves capable of being perceived visually, such as sounds, does not expressly exclude them. Additionally, sound signs are capable of distinguishing the goods and services of one undertaking from those of other undertakings. Following these arguments, the Court found that according to Article 2 of the Directive sounds may constitute a trademark, on the condition that they may also be represented graphically. In regard to part (b) of the first question, the Court also stated that Article 2 of the Directive does not preclude the registration of sounds as trade marks. Consequently, the