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) (Approximation of laws — Trade marks — Directive 89/104/EEC — Grounds for refusal to register — 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)
Date: 2003-06-07
Institutions: Court of Justice
Subjects: interpretation of the law, trade mark, trade-mark 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

7.6.2003

EN

Official Journal of the European Union

C 135/5

a preliminary ruling in the proceedings pending before that
court between Linde AG (C-53/01), Winward Industries Inc.
(C-54/01), and and Rado Uhren AG (C-55/01), on the
interpretation of Article 3(1)(b), (c) and (e) of First Council
Directive 89/104/EEC of 21 December 1988 to approximate
the laws of the Member States relating to trade marks (OJ
1989 L 40, p. 1), the Court, composed of: G.C. Rodríguez
J.-P. Puissochet, R. Schintgen and
Iglesias,
C.W.A. Timmermans, Presidents of Chamber, C. Gulmann,
D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rappor-
teur), J.N. Cunha Rodrigues, and A. Rosas, Judges; D. Ruiz-
Jarabo Colomer, Advocate General; H. von Holstein, Deputy
Registrar, has given a judgment on 8 April 2003, in which it
has ruled:

President,

1. When assessing the distinctiveness of a three-dimensional shape
of product trade mark for the purposes of Article 3(1)(b) of
First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks, a stricter test than that used for other types of trade
mark must not be applied.

2.

Independently of Article 3(1)(e) of First Directive 89/104,
Article 3(1)(c) also has significance for three-dimensional shape
of product trade marks.

When examining the ground for
refusing registration in
Article 3(1)(c) of First Directive 89/104 in a concrete case,
regard must be had to the public interest underlying that
provision, which is that all three-dimensional shape of product
trade marks which consist exclusively of signs or indications
which may serve to designate the characteristics of the goods or
service within the meaning of that provision should be freely
available to all and, subject always to Article 3(3) of the
Directive, cannot be registered.

( 1) OJ C 150 of 19.05.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 10 April 2003

in Case C-65/01: Commission of the European Communi-
ties v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
89/655/EEC — Incomplete transposition)

(2003/C 135/07)

(Language of the case: Italian)

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

In Case C-65/01, Commission of the European Communities
(Agent: A. Aresu) v Italian Republic (Agent: U. Leanza, assisted
by D. Del Gaizo, avvocato dello Stato): Application for a
declaration that, by failing to adopt the laws and regulations
necessary to transpose into national law the minimum manda-
tory requirements and, therefore, by failing to guarantee the
protection of workers, the Italian Republic has failed to fulfil
its obligations under Article 4(1) of, and the sixth sentence of
paragraph 2.1, the second sentence of paragraph 2.2, the
second to fourth sentences of paragraph 2.3, and the second
to fifth indents of the second sentence of paragraph 2.8 of
Annex I to, Council Directive 89/655/EEC of 30 November
1989 concerning the minimum safety and health requirements
for the use of work equipment by workers at work (second
individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC) (OJ 1989 L 393, p. 13), as amended by
Council Directive 95/63/EC of 5 December 1995 (OJ 1995
L 335, p. 28), the Court (Sixth Chamber), composed of:
J.-P. Puissochet, President of
the Chamber, C. Gulmann,
F. Macken, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues,
Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
given a judgment on 10 April 2003, in which it:

1. Declares that, by failing to adopt the laws and regulations
necessary to transpose into national law the minimum manda-
tory requirements, the Italian Republic has failed to fulfil its
obligations under Article 4(1) of and the sixth sentence of
paragraph 2.1, the second sentence of paragraph 2.2, the third
and fourth sentences of paragraph 2.3, and the second to fifth
indents of the second sentence of paragraph 2.8 of Annex I
to Council Directive 89/655/EEC of 30 November 1989
concerning the minimum safety and health requirements for the