Case C-59/05: Reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice) by order of that court of 2 December 2004 in the case of Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßautomatisierung mbH
Date: 2005-04-02
Institutions: Court of Justice
Subjects: Germany, advertising malpractice, comparative advertising, competition law, interpretation of the law

2.4.2005

EN

Official Journal of the European Union

C 82/19

Pleas in law and main arguments

Action brought on 10 February 2005 by the Commission
the Portuguese
of

the European Communities against

The period prescribed for the transposition of the directive into
national law expired on 31 July 2003.

(1) OJ 2002 L 183, p. 51.

Republic

(Case C-61/05)

(2005/C 82/40)

(Language of the case: Portuguese)

Reference for a preliminary ruling from the Bundes-
gerichtshof (Federal Court of Justice) by order of that
court of 2 December 2004 in the case of Siemens AG v
VIPA Gesellschaft für Visualisierung und Prozeßautomati-
sierung mbH

(Case C-59/05)

(2005/C 82/39)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundesgerichtshof (Federal
Court of Justice) (Germany) of 2 December 2004, received at
the Court Registry on 10 February 2005, for a preliminary
ruling in the proceedings between Siemens AG and VIPA
Gesellschaft für Visualisierung und Prozeßautomatisierung mbH
on the following questions concerning the interpretation of
Article 3a(1)(g) of Council Directive 84/450/EEC of 10
September 1984 concerning misleading and comparative
advertising (1), as amended by Directive 97/55/EC of the Euro-
pean Parliament and of the Council of 6 October 1997 (2):

1. Is the reputation of an ‘other distinguishing mark’ within
the meaning of Article 3a(1)(g) of Directive 84/450/EEC
taken advantage of unfairly where an advertiser adopts in
identical form the core elements of a distinguishing mark
which is known in trade circles (in this case, a system of
order numbers) of a competitor, and refers to those identical
elements in advertising?

Justice of

An action against the Portuguese Republic was brought before
the European Communities on 10
the Court of
February 2005 by the Commission of the European Commu-
nities, represented by P.Andrade and W.Wils, acting as Agents,
with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

— declare that the Portuguese Republic, by creating in Portu-
guese law a rental right in favour of producers of video-
grams, has failed to fulfil
its obligations under Council
Directive 92/100/EEC (1) of 19 November 1992 on rental
right and lending right and on certain rights related to
copyright in the field of intellectual property, and in par-
ticular under Article 2(1) thereof;

— declare that the Portuguese Republic, by creating in Portu-
guese law some doubt as to who is responsible for paying
the remuneration owed to artists on termination of the
rental right, has failed to fulfil its obligations under Direc-
tive 92/100/EEC, in particular under Article 4 in conjunc-
tion with Article 2(5) and (7) thereof;

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission submits that by failing to an grant exclusive
rental right to the producer of the first fixation of a film, the
Portuguese State is in breach of Directive 92/100 since it trans-
posed the provisions of Article 2(1) of the directive incorrectly.

2. In determining whether unfair advantage is taken of a repu-
tation for
the purposes of Article 3(1)(g) of Directive
84/450/EC, is the benefit to the advertiser and the consumer
procured by the adoption of the identical system a relevant
factor?

Moreover, the use of the term ‘producer’
in the Portuguese
legislation creates confusion as to who must pay the artists the
remuneration to which they are entitled, constituting an incor-
rect transposition of the directive, in particular of Article 2(5)
and (7) in conjunction with Article 4 thereof.

(1) OJ 1984 L 250, p. 17.
(2) OJ 1997 L 290, p. 18.

(1) OJ 1992 L 346, p. 61.