Source: EURLEX
Language: en
Format: md

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 Handelsgesellschaft mbH, Verlassenschaft nach dem verstorbenen Franz
Josef Hartlauer, on the interpretation of Council Directive 84/
450/EEC of 10 September 1984 on misleading and comparative 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 (Presidents of Chambers), D.A.O. Edward, V. Skouris, F. Macken,
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur)
and A. Rosas, Judges; A. Tizzano, Advocate General; M.F. Contet, Administrator, for the Registrar, has given a
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_
_average price difference or by reason of the number 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/**_
_**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)**_

(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
Iglesias, President, J.-P. Puissochet, R. Schintgen and
C.W.A. Timmermans, Presidents of Chamber, C. Gulmann,
D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rapporteur), J.N. Cunha Rodrigues, and A. Rosas, Judges; D. RuizJarabo Colomer, Advocate General; H. von Holstein, Deputy
Registrar, has given a judgment on 8 April 2003, in which it
has ruled:

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 mandatory 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), andJ.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_