Case C-418/01: 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
Date: 2002-01-05
Institutions: Court of Justice
Subjects: database, dominant position, intellectual property, interpretation of the law, patents licence, restriction on competition

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’?