Opinion of the Advocate General — ECLI:EU:C:1998:338
Date: 1998-07-07
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of goods;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Freedom of movement for persons — Freedom of establishment — Provision of national law 
prohibiting, where there is a risk of confusion, use of a trade name as the specific designation 
of an undertaking — Whether permissible — Conditions 
(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC)) 
I - 2835 
SUMMARY — CASE C-255/97 
2. Free movement of goods — Provision of national law prohibiting, where there is a risk of 
confusion, use of a trade name as the specific designation of an undertaking — Where the 
prohibition is not contrary to Article 52 of the Treaty (now, after amendment, Article 43 EC) 
— Whether permissible — Conditions 
(EC Treaty, Art. 30 (now, after amendment, Art. 28 EC)) 
1. Article 52 of the Treaty (now, after amend­
ment, Article 43 EC) does not preclude a 
provision of national law which prohibits, 
where there is a risk of confusion, the use 
of a trade name as the specific designation 
of an undertaking. 
The prohibition operates to the detriment 
of undertakings whose seat is in another 
Member State where they lawfully use a 
trade name which they would like to use 
beyond the boundaries of that State. How­
ever, such a restriction on the right of 
establishment, brought about by a provi­
sion of national law whose primary aim is 
to safeguard trade names against the risk 
of confusion, is justified by overriding 
requirements in the general interest per­
taining to the protection of industrial and 
commercial property. No exception can be 
taken under Community law to the pro­
tection granted by a national law against 
the risk of confusion, since it corresponds 
to the specific subject-matter of a trade 
name, that is to say, protection of the pro­
prietor of the trade name against that risk. 
2. Article 30 of the Treaty (now, after amend­
ment, Article 28 EC) does not preclude a 
provision of national law which prohibits, 
where there is a risk of confusion, the use 
of a trade name as the specific designation 
of an undertaking. 
Since such a prohibition is not contrary to 
Article 52 of the Treaty (now, after amend­
ment, Article 43 EC) because it is justified 
by overriding requirements in the general 
interest, it could conflict with Article 30 
of the Treaty only if, and to the extent 
that, it restricted the free movement of 
goods between Member States other than 
indirectly through the restriction of 
freedom of establishment. Even supposing 
that such a measure restricted the free 
movement of goods, there is nothing to 
suggest that the restriction does not flow 
indirectly from the restriction on the 
freedom of establishment. 
I - 2836