CELEX: C2003/135/05
Language: en
Date: 2003-06-07 00:00:00
Title: 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, Verlassenschaft nach dem verstorbenen Franz Josef Hartlauer (Approximation of laws — Directives 84/450/EEC and 97/55/EC — Misleading advertising — Conditions for comparative advertising to be lawful)

C 135/4                  EN                          Official Journal of the European Union                                                7.6.2003
                  JUDGMENT OF THE COURT                                            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,
                           of 8 April 2003                                         omission of the better-known brand name is capable of being
                                                                                   misleading.
in Case C-44/01 (Reference for a preliminary ruling from                     3.    Article 3a(1) of Directive 84/450, as amended, does not
the Oberster Gerichtshof): Pippig Augenoptik GmbH &                                preclude compared products from being purchased through
Co. KG v Hartlauer Handelsgesellschaft mbH, Verlassen-                             different distribution channels.
  schaft nach dem verstorbenen Franz Josef Hartlauer (1)
                                                                             4.    Article 3a(1) of Directive 84/450, as amended, does not
                                                                                   preclude an advertiser from carrying out a test purchase with a
(Approximation of laws — Directives 84/450/EEC and
                                                                                   competitor before his own offer has even commenced, where the
97/55/EC — Misleading advertising — Conditions for
                                                                                   conditions for the lawfulness of comparative advertising set out
              comparative advertising to be lawful)
                                                                                   therein are complied with.
                           (2003/C 135/05)                                   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
                    (Language of the case: German)                                 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
(Provisional translation; the definitive translation will be published             amended, does not prevent comparative advertising, in addition
                    in the European Court Reports)                                 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.
In Case C-44/01: Reference to the Court under Article 234 EC                 (1 ) OJ C 118 of 21.04.2001.
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                                       JUDGMENT OF THE COURT
Council of 6 October 1997 (OJ 1997 L 290 p. 18), the
Court, composed of: G.C. Rodríguez Iglesias, President, J.-                                              of 8 April 2003
P. Puissochet, M. Wathelet and C.W.A. Timmermans (Presi-
dents of Chambers), D.A.O. Edward, V. Skouris, F. Macken,
                                                                             in Joined Cases C-53/01, C-54/01 and C-55/01 (Reference
N. Colneric, S. von Bahr, J.N. Cunha Rodrigues (Rapporteur)
                                                                             for a preliminary ruling from the Bundesgerichtshof):
and A. Rosas, Judges; A. Tizzano, Advocate General; M.-
                                                                             Linde AG (C-53/01), Winward Industries Inc. (C-54/01),
F. Contet, Administrator, for the Registrar, has given a
                                                                                            and v Rado Uhren AG (C-55/01) (1)
judgment on 8 April 2003, in which it has ruled:
                                                                             (Approximation of laws — Trade marks — Directive 89/
1.    Article 7(2) of Council Directive 84/450/EEC of 10 September           104/EEC — Grounds for refusal to register —
      1984 on misleading and comparative advertising, as amended             Article 3(1)(b), (c) and (e) — Three-dimensional shape of
      by Directive 97/55/EC of the European Parliament and of the            product mark — Distinctive character — Preserving the
      Council of 6 October 1997, precludes the application to                       availability of certain signs in the public interest)
      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                                    (2003/C 135/06)
      need to establish distinctions between the various elements of
      the comparison, that is to say statements concerning the                                    (Language of the case: German)
      advertiser’s offer, statements concerning the competitor’s offer
      and the relationship between those offers.
                                                                             (Provisional translation; the definitive translation will be published
                                                                                                  in the European Court Reports)
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      In Joined Cases C-53/01 to C-55/01: References to the Court
      to verify whether, in particular circumstances, characterised by       under Article 234 EC by the Bundesgerichtshof (Germany) for