Source: EURLEX
Language: en
Format: md

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. 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
(a) Must the question concerning the similarity between position would be involved if they were in future to go
the trade mark and the sign in such a case be over to purchasing the product of a competing undertakassessed on the basis of a criterion other than that ing which does not make use of the data bank protected
of (direct or indirect) confusion as to origin, and if by copyright relevant to the question of abusive conduct
so, according to what criterion? by an undertaking with a dominant position on the
market?

(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?

**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** **(Case C-421/01)**
**in the case of IMS Health GmbH & Co. OHG v NDC**
**Health GmbH & Co**
(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 25 September 2001 by
the Bundesvergabeamt (Austrian Federal Procurement Office),
which was received at the Court Registry on 24 October 2001,
Reference has been made to the Court of Justice of the for a preliminary ruling in the case of Traunfellner GmbH v
O [¨ ] sterreichische Autobahnen- und Schnellstrassen-FinanEuropean Communities by order of the Landgericht Frankfurt
zierungs-AG (O [¨ ] SAG) on the following questions:
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: Question 1

Is an alternative tender that consists in proposing an asphalt
1. Is Article 82 EC to be interpreted as meaning that there is
surface instead of overlaying the carriageway with concrete as
abusive conduct by an undertaking with a dominant
specified in the tender document a ‘variant’ within the meaning
position on the market where it refuses to grant a licence
of the first paragraph of Article 19 of Directive 93/37/EEC( [1] )?
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
Question 2
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 Can a criterion established in national legislation to determine
relies on products manufactured on the basis of that data the admissibility of the acceptance of a ‘variant’ within the
bank? meaning of the first paragraph of Article 19 of Directive
93/37/EEC, whereby ‘the performance of qualitatively equivalent work is ensured’ by the variant, properly be regarded as a
2. Is the extent to which an undertaking with a dominant ‘minimum specification’ required and stated by the contracting
position on the market has involved persons from the authority in accordance with the first and second paragraphs
other side of the market in the development of the data of Article 19 of Directive 93/37/EEC, if the tender document
bank protected by copyright relevant to the question of refers only to the national provision and does not specify the
abusive conduct by that undertaking? comparative parameters to be used to assess ‘equivalence’?