# C_2016419EN.01002901.xml

| 14.11.2016 | EN | Official Journal of the European Union | C 419/29 |
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14.11.2016

EN

Official Journal of the European Union

C 419/29

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Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2016 — Acacia Srl and Rolando D’Amato v Dr.Ing. h.c. F. Porsche AG

(Case C-435/16)

(2016/C 419/38)

Language of the case: German

Referring court

Referring court

Bundesgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Appellants on a point of law: Acacia Srl, Rolando D’Amato

Appellants on a point of law:

Respondent on a point of law: Dr.Ing. h.c. F. Porsche AG

Respondent on a point of law:

Questions referred

Questions referred

| 1. | Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 (1) limited to fixed shape parts, namely those parts whose shape is in principle immutably determined by the appearance of the product as a whole and cannot therefore be freely selected by the customer, such as rims for motor vehicles? |
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1.

Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 (1) limited to fixed shape parts, namely those parts whose shape is in principle immutably determined by the appearance of the product as a whole and cannot therefore be freely selected by the customer, such as rims for motor vehicles?

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| 2. | If Question 1 is answered in the negative:
  Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 limited only to the supply of products of an identical design, which thus correspond also in colour and size to the original products? |
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2.

If Question 1 is answered in the negative:

Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 limited only to the supply of products of an identical design, which thus correspond also in colour and size to the original products?

| 3. | If Question 1 is answered in the negative:
  Does the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 apply in favour of the supplier of a product that fundamentally infringes the design at issue only if this supplier objectively ensures that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? |
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3.

If Question 1 is answered in the negative:

Does the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 apply in favour of the supplier of a product that fundamentally infringes the design at issue only if this supplier objectively ensures that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole?

| 4. | If Question 3 is answered in the affirmative:
  Which measures must the supplier of a product that fundamentally infringes the design at issue take in order to objectively ensure that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? Is it enough:






  (a) | that the supplier includes a note in the sales brochure to the effect that any sale takes place exclusively for repair purposes so as to restore the original appearance of the product as a whole; or |
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4.

If Question 3 is answered in the affirmative:

Which measures must the supplier of a product that fundamentally infringes the design at issue take in order to objectively ensure that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? Is it enough:

(a)

that the supplier includes a note in the sales brochure to the effect that any sale takes place exclusively for repair purposes so as to restore the original appearance of the product as a whole; or

| (b) | is it necessary that the supplier make delivery conditional on the customer (traders and consumers) declaring in writing that the product supplied is to be used for repair purposes only? |
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(b)

is it necessary that the supplier make delivery conditional on the customer (traders and consumers) declaring in writing that the product supplied is to be used for repair purposes only?

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(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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