Judgment of the Court of 8 April 2003 in Case C-44/01 (Reference for a preliminary ruling from the Oberster Gerichtshof): Pippig Augenoptik GmbH & Co. KG v Hartlauer Handelsgesellschaft mbH, Verlassenschaft nach dem verstorbenen Franz Josef Hartlauer (Approximation of laws — Directives 84/450/EEC and 97/55/EC — Misleading advertising — Conditions for comparative advertising to be lawful)
Date: 2003-06-07
Institutions: Court of Justice
Subjects: advertising malpractice, approximation of laws, comparative advertising, consumer protection, interpretation of the law

C 135/4

EN

Official Journal of the European Union

7.6.2003

JUDGMENT OF THE COURT

of 8 April 2003

in Case C-44/01 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Pippig Augenoptik GmbH &
Co. KG v Hartlauer Handelsgesellschaft mbH, Verlassen-
schaft nach dem verstorbenen Franz Josef Hartlauer (1)

(Approximation of laws — Directives 84/450/EEC and
97/55/EC — Misleading advertising — Conditions for
comparative advertising to be lawful)

(2003/C 135/05)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-44/01: Reference to the Court under Article 234 EC
by the Oberster Gerichtshof (Austria) for a preliminary ruling
in the proceedings pending before that court between Pippig
Augenoptik GmbH & Co. KG and Hartlauer Handelsgesell-
schaft mbH, Verlassenschaft nach dem verstorbenen Franz
Josef Hartlauer, on the interpretation of Council Directive 84/
450/EEC of 10 September 1984 on misleading and compara-
tive advertising (OJ 1984 L 250, p. 17), as amended by
Directive 97/55/EC of the European Parliament and of the
Council of 6 October 1997 (OJ 1997 L 290 p. 18), the
Court, composed of: G.C. Rodríguez Iglesias, President, J.-
P. Puissochet, M. Wathelet and C.W.A. Timmermans (Presi-
dents of Chambers), D.A.O. Edward, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur)
Judges; A. Tizzano, Advocate General; M.-
and A. Rosas,
for the Registrar, has given a
F. Contet, Administrator,
judgment on 8 April 2003, in which it has ruled:

1. Article 7(2) of Council Directive 84/450/EEC of 10 September
1984 on misleading and comparative advertising, as amended
by Directive 97/55/EC of the European Parliament and of the
Council of 6 October 1997, precludes the application to
comparative advertising of stricter national provisions on
protection against misleading advertising as far as the form and
content of the comparison is concerned, without there being any
need to establish distinctions between the various elements of
the comparison, that
is to say statements concerning the
advertiser’s offer, statements concerning the competitor’s offer
and the relationship between those offers.

2. Article 3a(1)(a) of Directive 84/450, as amended, must be
interpreted as meaning that, whereas the advertiser is in
principle free to state or not to state the brand name of rival
products in comparative advertising, it is for the national court
to verify whether, in particular circumstances, characterised by

the importance of the brand in the buyer’s choice and by a
major difference between the respective brand names of the
compared products in terms of how well known they are,
omission of the better-known brand name is capable of being
misleading.

3. Article 3a(1) of Directive 84/450, as amended, does not
preclude compared products from being purchased through
different distribution channels.

4. Article 3a(1) of Directive 84/450, as amended, does not
preclude an advertiser from carrying out a test purchase with a
competitor before his own offer has even commenced, where the
conditions for the lawfulness of comparative advertising set out
therein are complied with.

5. A price comparison does not entail

the discrediting of a
competitor, within the meaning of Article 3a(1)(e) of Directive
84/450, as amended, either on the grounds that the difference
in price between the products compared is greater than the
the number of
average price difference or by reason of
comparisons made. Article 3a(1)(e) of Directive 84/450, as
amended, does not prevent comparative advertising, in addition
to citing the competitor’s name, from reproducing its logo and
a picture of its shop front, if that advertising complies with the
conditions for lawfulness laid down by Community law.

(1) OJ C 118 of 21.04.2001.

JUDGMENT OF THE COURT

of 8 April 2003

in Joined Cases C-53/01, C-54/01 and C-55/01 (Reference
for a preliminary ruling from the Bundesgerichtshof):
Linde AG (C-53/01), Winward Industries Inc. (C-54/01),
and v Rado Uhren AG (C-55/01) (1)

(Approximation of laws — Trade marks — Directive 89/
register —
for
104/EEC — Grounds
Article 3(1)(b), (c) and (e) — Three-dimensional shape of
product mark — Distinctive character — Preserving the
availability of certain signs in the public interest)

refusal

to

(2003/C 135/06)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Joined Cases C-53/01 to C-55/01: References to the Court
under Article 234 EC by the Bundesgerichtshof (Germany) for