Opinion of the Advocate General — ECLI:EU:C:2001:80
Date: 2001-02-08
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Scope — Indication, in the catalogue of a 
supplier of spare parts, of product numbers by which an equipment manufacturer 
designates his own spare parts — Included — Conditions under which it is lawful — 
Objective comparison — infringement — None 
(Council Directive 84/450, Art. 2(2a) and 3a(1)(c)) 
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SUMMARY — CASE C-112/99 
2. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Conditions under which it is lawful — 
Protection of distinguishing marks — Assessment of the existence of those marks — 
Criteria — Competence of the national court 
(Council Directive 84/450, Art. 3a(1)(g)) 
3. Approximation of laws — Misleading and comparative advertising — Directive 
84/450 — Comparative advertising — Conditions under which it is lawful — 
Protection of distinguishing marks — Abuse of reputation — Meaning — Criteria 
of assessment 
(Council Directive 84/450, Art. 3a(1)(g)) 
1. Articles 2(2a) and 3a(1)(c) of Directive 
84/450 concerning misleading and 
comparative advertising, as amended 
by Directive 97/55, must be interpreted 
as meaning that the indication, in the 
catalogue of a supplier of spare parts 
and consumable items suitable for the 
products of an equipment manufac­
turer, of product numbers (OEM num­
bers) by which the equipment manu­
facturer designates the spare parts and 
consumable items which he himself 
sells may constitute comparative adver­
tising which objectively compares one 
or more material, relevant, verifiable 
and representative features of goods. 
(see para. 40, 
and operative part 1) 
2. It is for the national court to determine 
whether the equipment manufacturer's 
product numbers (OEM) numbers by 
which he designates the spare parts and 
consumable items sold by him are 
distinguishing marks within the mean­
ing of Article 3a(1)(g) of Directive 
84/450 concerning misleading and 
comparative advertising, as amended 
by Directive 97/55, in the sense that 
they are identified as coming from a 
particular undertaking. In order to do 
so, it will have to take into account the 
perception of an average individual 
who is reasonably well informed and 
reasonably observant and circumspect. 
Account should also be taken of the 
type of persons at whom the advertis­
ing is directed, in particular whether 
those persons are specialist traders who 
are much less likely than final consu­
mers to associate the reputation of the 
equipment manufacturer's products 
with those of the competing supplier. 
(see para. 52) 
3. Article 3a(1)(g) of Directive 84/450 
concerning misleading and compara-
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TOSHIBA EUROPE 
tive advertising, as amended by Direc­
tive 97/55, must be interpreted as 
meaning that where product numbers 
(OEM numbers) of an equipment man­
ufacturer are, as such, distinguishing 
marks within the meaning of that 
provision, their use in the catalogues 
of a competing supplier enables him to 
take unfair advantage of the reputation 
attached to those marks only if the 
effect of the reference to them is to 
create, in the mind of the persons at 
whom the advertising is directed, an 
association between the manufacturer 
whose products are identified and the 
competing supplier, in that those per­
sons associate the reputation of the 
manufacturer's products with the pro­
ducts of the competing supplier. In 
order to determine whether that con­
dition is satisfied, account should be 
taken of the overall presentation of the 
advertising at issue and the type of 
persons for whom the advertising is 
intended. 
(see para. 60, 
and operative part 2) 
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