Case C-408/01: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 12 October 2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V. against FITNESS WORLD TRADING Ltd
Date: 2002-01-05
Institutions: Court of Justice
Subjects: brand name, interpretation of the law, patents licence, trade mark, trade-mark law

5.1.2002

EN

Official Journal of the European Communities

C 3/15

Reference for a preliminary ruling by the Arbeitsgericht
Lörrach by orders of 26 September 2001 in the cases of
Bernhard Pfeiffer, Wilhelm Roith, Albert Süss, Michael
Winter, Klaus Nestvogel, Roswitha Zeller and Matthias
Döbele v Deutsches Rotes Kreuz, Kreisverband Waldshut
e.V.

3.

Is Article 6 of Directive 93/104/EC in itself unconditional
and sufficiently precise to be capable of being relied on
by individuals before national courts where the State has
not properly transposed the directive into national law?

(Cases C-397/01 to C-403/01)

(2002/C 3/21)

(1) OJ L 307, p. 18.
(2) OJ L 183, p. 1.

Reference has been made to the Court of Justice of the
European Communities by orders of 26 September 2001 of
the Arbeitsgericht Lörrach (Labour Court) Lörrach, which were
received at the Court Registry on 12 October 2001 in the
(C-397/01), Wilhelm Roith
cases of Bernhard Pfeiffer
(C-399/01), Michael Winter
(C-398/01), Albert
(C-400/01), Klaus Nestvogel
(C-401/01), Roswitha Zeller
(C-402/01) and Matthias Döbele (C-403/01) v Deutsches
Rotes Kreuz, Kreisverband Waldshut e.V (German Red Cross,
Waldshut District Association) for a preliminary ruling on the
following questions:

Süss

1(a) Is the reference in Article 1(3) of Council Directive
93/104/EC (1) of 23 November 1993 concerning certain
aspects of the organisation of working time to Article 2(2)
of Council Directive 89/391/EEC (2) of 12 June 1989 on
the introduction of measures to encourage improvements
in the safety and health of workers at work, under which
the directives are not applicable where characteristics
peculiar to certain specific activities in the civil protection
services inevitably conflict with their application, to be
construed as meaning that the plaintiff’s activity as a
rescue worker is caught by this exclusion?

1(b) Is the concept of road transport

in Article 1(3) of
Directive 93/104/EC to be construed as meaning that
only those driving activities in which by their nature great
distances are covered and, consequently, working times
cannot be fixed owing to the unforeseeability of any
difficulties are excluded from the scope of the directive,
or is road transport within the meaning of this provision
also to be taken to mean the activity of land-based rescue
services, which comprises at least in part the driving of
rescue vehicles and attendance on patients during the
journey?

2.

In view of the judgment in Case C-303/98 Simap [2000]
ECR I-0000, paragraphs 73 and 74, is Article 18(1)(b)(i)
of Directive 93/104/EC to be construed as meaning that
consent given individually by a worker must expressly
refer to the extension of working time to more than
48 hours per week, or may such consent also reside in
the worker’s agreeing with the employer, in the contract
of employment,
that working conditions are to be
governed by a collective agreement which itself allows
working time to be extended to more than 48 hours on
average?

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 12 October
2001 in the case of 1. ADIDAS A.G. and 2. ADIDAS
BENELUX B.V. against FITNESS WORLD TRADING Ltd

(Case C-408/01)

(2002/C 3/22)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden of 12 October 2001, which was received at the
Court Registry on 15 October 2001, for a preliminary ruling
in the case of 1. ADIDAS A.G. and 2. ADIDAS BENELUX B.V.
against FITNESS WORLD TRADING Ltd on the following
questions:

1.

(a) Must Article 5(2) of the Directive be interpreted as
meaning that, under a national law implementing
that provision, the proprietor of a trade mark which
is well known in the Member State concerned may
also oppose the use of the trade mark or a sign
similar to it,
in the manner and circumstances
referred to therein, in relation to goods or services
which are identical with or similar to those for
which the trade mark is registered?

(b)

If the answer to Question 1(a) is in the negative:
where Article 5(2) of the Directive is implemented
in a national law, must the concept of ‘likelihood of
the
confusion’ referred to in Article 5(1)(b) of
Directive be interpreted as meaning that
there
exists such a likelihood if a person other than the
proprietor of the trade mark uses a well-known
trade mark or a sign similar to it, in the manner and
circumstances referred to in Article 5(2) of the
Directive, in relation to goods or services which are
identical with or similar to those for which the trade
mark is registered?

C 3/16

EN

Official Journal of the European Communities

5.1.2002

2.

If the answer to Question 1(a) is in the affirmative:

3.

(a) Must the question concerning the similarity between
the trade mark and the sign in such a case be
assessed on the basis of a criterion other than that
of (direct or indirect) confusion as to origin, and if
so, according to what criterion?

(b)

If the sign alleged to be an infringement in such a
case is viewed purely as an embellishment by the
relevant section of the public, what importance must
be attached to that circumstance in connection with
the question concerning the similarity between the
trade mark and the sign?

Is the material outlay (in particular in regard to costs) in
which clients who have hitherto been supplied with the
product of the undertaking having a dominant market
position would be involved if they were in future to go
over to purchasing the product of a competing undertak-
ing which does not make use of the data bank protected
by copyright relevant to the question of abusive conduct
by an undertaking with a dominant position on the
market?

Reference for a preliminary ruling by the Bundesverga-
beamt (Austria) by order of 25 September 2001 in the
case of Traunfellner GmbH v O¨ sterreichische Autobah-
nen- und Schnellstrassen-Finanzierungs-AG (O¨ SAG)

Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 12 July 2001
in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co

(Case C-421/01)

(2002/C 3/24)

(Case C-418/01)

(2002/C 3/23)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Frankfurt
am Main (Regional Court) of 12 July 2001, which was received
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions:

1.

2.

Is Article 82 EC to be interpreted as meaning that there is
abusive conduct by an undertaking with a dominant
position on the market where it refuses to grant a licence
agreement for the use of a data bank protected by
copyright to an undertaking which seeks access to the
same geographical and actual market if the participants
on the other side of the market, that is to say potential
clients, reject any product which does not make use of
the data bank protected by copyright because their set-up
relies on products manufactured on the basis of that data
bank?

Is the extent to which an undertaking with a dominant
position on the market has involved persons from the
other side of the market in the development of the data
bank protected by copyright relevant to the question of
abusive conduct by that undertaking?

Reference has been made to the Court of Justice of the
European Communities by order of 25 September 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 24 October 2001,
for a preliminary ruling in the case of Traunfellner GmbH v
O¨ sterreichische Autobahnen- und Schnellstrassen-Finan-
zierungs-AG (O¨ SAG) on the following questions:

Question 1

Is an alternative tender that consists in proposing an asphalt
surface instead of overlaying the carriageway with concrete as
specified in the tender document a ‘variant’ within the meaning
of the first paragraph of Article 19 of Directive 93/37/EEC (1)?

Question 2

Can a criterion established in national legislation to determine
the admissibility of the acceptance of a ‘variant’ within the
meaning of the first paragraph of Article 19 of Directive
93/37/EEC, whereby ‘the performance of qualitatively equiva-
lent work is ensured’ by the variant, properly be regarded as a
‘minimum specification’ required and stated by the contracting
authority in accordance with the first and second paragraphs
of Article 19 of Directive 93/37/EEC, if the tender document
refers only to the national provision and does not specify the
comparative parameters to be used to assess ‘equivalence’?