# C_2005082EN.01001503.xml

| 2.4.2005 | EN | Official Journal of the European Union | C 82/15 |
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2.4.2005

EN

Official Journal of the European Union

C 82/15

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Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.)

(Case C-48/05)

(2005/C 82/33)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Nürnberg-Fürth (Germany) of 28 January 2005, received at the Court Registry on 8 February 2005, in the proceedings between Adam Opel AG and Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.) for a preliminary ruling on the following questions of the interpretation of Article 5(l)(a) and Article 6(l)(b) of the First Directive of the Council No 89/104/EC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks:

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| 1. | Does the use of a trade mark registered also for ‘toys’ constitute use as a trade mark for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model car copies a real car in a reduced scale, including the trade mark of the proprietor of the trade mark as applied to the real car, and markets it? |
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1.

Does the use of a trade mark registered also for ‘toys’ constitute use as a trade mark for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model car copies a real car in a reduced scale, including the trade mark of the proprietor of the trade mark as applied to the real car, and markets it?

| 2. | If the answer to Question in 1 is in the affirmative: is the type of use of the trade mark described in Question 1 an indication of the kind or quality of the model car within the meaning of Article 6(1)(а) of the Trade Mark Directive? |
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2.

If the answer to Question in 1 is in the affirmative: is the type of use of the trade mark described in Question 1 an indication of the kind or quality of the model car within the meaning of Article 6(1)(а) of the Trade Mark Directive?

| 3. | If the answer to Question 2 is in the affirmative:
  In cases of this type what are the decisive criteria to be applied in assessing whether the trade mark corresponds to honest practices in industrial or commercial matters? |
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3.

If the answer to Question 2 is in the affirmative:

In cases of this type what are the decisive criteria to be applied in assessing whether the trade mark corresponds to honest practices in industrial or commercial matters?

| 4. | Is this in particular the case if the manufacturer of the model car applies to the packaging, and to an accessory required in order to use the model, a mark recognisable to the trade as its own trade mark together with its company name and the address of its seat? |
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4.

Is this in particular the case if the manufacturer of the model car applies to the packaging, and to an accessory required in order to use the model, a mark recognisable to the trade as its own trade mark together with its company name and the address of its seat?

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(1)  OJ 1989 L 40, p. 1.

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