Case C-487/07: Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 5 November 2007 — L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie v Bellure NV, Malaika Investments Ltd, (trading as Honey pot cosmetic & Perfumery Sales ), Starion International Ltd
Date: 2007-11-05
Institutions: Court of Justice
Subjects: advertising malpractice, brand name, comparative advertising, consumer protection, interpretation of the law, trade-mark law

C 8/8

EN

Official Journal of the European Union

12.1.2008

Reference for a preliminary ruling from the Rechtbank
's-Gravenhage, sitting at Roermond (Netherlands) lodged
on 31 October 2007 — Fatma Pehlivan v Staatssecretaris
van Justitie

undertake (further) investigations before reaching their deci-
sion? If so, in what way?

(Case C-484/07)

(2008/C 8/14)

Language of the case: Dutch

Reference for a preliminary ruling from Court of Appeal
(Civil Division) (United Kingdom) made on 5 November
2007 — L'Oréal SA, Lancôme parfums et beauté & Cie
v Bellure NV,
SNC,
pot
‘Honey
as
Malaika

Laboratoire Garnier & Cie
(trading

Investments

Ltd,

Referring court

Rechtbank 's-Gravenhage, sitting at Roermond (Netherlands)

Parties to the main proceedings

Applicant: Fatma Pehlivan

cosmetic & Perfumery Sales’), Starion International Ltd

(Case C-487/07)

(2008/C 8/15)

Language of the case: English

Defendant: Staatssecretaris van Justitie

Referring court

Questions referred

1a. Must the first indent of the first paragraph of Article 7 of
Association Decision 1/80 be interpreted as meaning that
that article is applicable if a family member has actually
cohabited with a Turkish worker for three years without the
right of residence of that family member being challenged
by the competent national authorities during those three
years?

1b. Does the first indent of the first paragraph of Article 7 of
Association Decision 1/80 prevent a Member State from
stipulating during those three years that,
the family
member who has been admitted marries, no rights are
further acquired under that provision, even if the family
member continues to live with the Turkish worker?

if

2. Does the first indent of the first paragraph of Article 7 or
any other provision or principle of European law prevent
the competent national authorities from challenging the
right of residence of the foreign national concerned with
retroactive effect after that period of
three years under
national rules determining whether that person is a family
member and/or was legally resident during those three
years?

3a.

Is it of any relevance to the answers to the above questions
whether or not the foreign national intentionally withholds
information which is relevant
to his right of residence
under national legislation? If so, in what way?

3b. Does it make any difference in this context whether that
information becomes known in the aforementioned period
of three years or only after those three years have elapsed,
bearing in mind that, after that information has become
known, the competent national authorities possibly need to

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicants: L'Oréal SA, Lancôme parfums et beauté & Cie SNC,
Laboratoire Garnier & Cie

trading as
Defendant: Bellure NV, Malaika Investments Ltd,
‘Honey pot cosmetic & Perfumery Sales’), Starion International
Ltd

Questions referred

1 Where a trader, in an advertisement for his own goods or
services uses a registered trade mark owned by a competitor
for the purpose of comparing the characteristics (and in par-
ticular the smell) of goods marketed by him with the charac-
teristics (and in particular the smell) of the goods marketed
by the competitor under that mark in such a way that it does
not cause confusion or otherwise jeopardise the essential
function of the trade mark as an indication of origin, does
his use fall within either (a) or (h) of Article 5(I) of Directive
89/104?

2 Where a trader in the course of trade uses (particularly in a
comparison list) a well known registered trade mark for the
purpose of indicating a characteristic of his own product
(particularly its smell) in such a way that:

a) it does not cause any likelihood of confusion of any sort;

and

12.1.2008

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Official Journal of the European Union

C 8/9

b) it does not affect the sale of the products under the well-

known registered mark: and

c) it does not jeopardize the essential function of the regis-
tered trade mark as a guarantee of origin and does not
harm the reputation of that mark whether by tarnishment
of its image, or dilution or in any other way; and

Reference for a preliminary ruling from Court of Session
(Scotland),
on
5 November 2007 — Royal Bank of Scotland plc v The
Commissioners of Her Majesty's Revenue & Customs

(United Kingdom) made

Edinburgh

(Case C-488/07)

(2008/C 8/16)

d) it plays a significant role in the promotion of the trader's

product

Language of the case: English

does that use fall within Article 5(1)(a) of Directive 89/104?

3 In the context of Article 3a(g) of the Misleading Advertising
Directive (84/450) as amended by the Comparative Adver-
tising Directive (97/55), what is the meaning of ‘take unfair
advantage of' and in particular where a trader in a compar-
ison list compares his product with a product under a well-
known trade mark, does he thereby take unfair advantage of
the reputation of the well-known mark’?

4 In the context of Article 3a(h) of the said Directive what is
the meaning of ‘presenting goods or services as imitations or
replicas’ and in particular does this expression cover the case
where, without in any way causing confusion or deception, a
party merely truthfully says that his product has a major
characteristic (smell) like that of a well-known product which
is protected by a trade mark?

5 Where a trader uses a sign which is similar to a registered
trade mark which has a reputation, and that sign is not
confusingly similar to the trade mark, in such a way that

(a) the essential

function of

the registered trade mark of
providing a guarantee of origin is not impaired or put at
risk;

(b) there is no tarnishing or blurring of the registered trade
mark or its reputation or any risk of either of these;

(c) the trade mark owner's sales are not impaired: and

(d) the trade mark owner is not deprived of any of

the
reward for promotion, maintenance or enhancement of
his trade mark;

(e) But the trader gets a commercial advantage from the use
of his sign by reason of its similarity to the registered
mark

does that use amount to the taking of ‘an unfair advantage’ of
the reputation of the registered mark within the meaning of
Article 5(2) of the Trade Mark Directive?

Referring court

Court of Session (Scotland), Edinburgh

Parties to the main proceedings

Applicant: Royal Bank of Scotland plc

Defendan: The Commissioners of Her Majesty's Revenue &
Customs

Questions referred

1. Does the second paragraph of Article 19(1) of the Sixth VAT
Directive 77/388/EEC (1) require the proportion deductible
by a taxable person under Article 17(5) to be determined on
an annual basis, fixed as a percentage and rounded up to a
figure not exceeding the next unit where:

a. that proportion is a proportion which has been deter-
mined for a sector of the business of the taxable person
in accordance with either item (a) or (b) of the third sub-
paragraph of Article 17(5); and/or

b. that proportion is a proportion which has been deter-
mined on the basis of the use of all or part of goods and
services by the taxable person in accordance with item (c)
of the third subparagraph of Article 17(5); and/or

c. that proportion is a proportion which has been deter-
mined in respect of all goods and services used by the
taxable person for all transactions referred to in the first
paragraph of Article 17(5), in accordance with item (d) of
the third subparagraph thereof?

2. Does the second subparagraph of

the said Article 19(1)
permit Member States to require the proportion deductible
by a taxable person under Article 17(5) to be rounded up to
a figure other than the next highest whole number?

(1) OJ L 145 p. 1.