CELEX: C2003/135/06
Language: en
Date: 2003-06-07 00:00:00
Title: 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) (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)

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
 ---pagebreak--- 7.6.2003                 EN                           Official Journal of the European Union                                               C 135/5
a preliminary ruling in the proceedings pending before that                                    JUDGMENT OF THE COURT
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                                          (Sixth Chamber)
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
                                                                                                         of 10 April 2003
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 (Rappor-
teur), J.N. Cunha Rodrigues, and A. Rosas, Judges; D. Ruiz-                   in Case C-65/01: Commission of the European Communi-
Jarabo Colomer, Advocate General; H. von Holstein, Deputy                                           ties v Italian Republic ( 1)
Registrar, has given a judgment on 8 April 2003, in which it
has ruled:
                                                                              (Failure of a Member State to fulfil obligations — Directive
                                                                                         89/655/EEC — Incomplete transposition)
                                                                                                         (2003/C 135/07)
1.    When assessing the distinctiveness of a three-dimensional shape
      of product trade mark for the purposes of Article 3(1)(b) of                                 (Language of the case: Italian)
      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          (Provisional translation; the definitive translation will be published
      mark must not be applied.                                                                   in the European Court Reports)
2.    Independently of Article 3(1)(e) of First Directive 89/104,             In Case C-65/01, Commission of the European Communities
      Article 3(1)(c) also has significance for three-dimensional shape       (Agent: A. Aresu) v Italian Republic (Agent: U. Leanza, assisted
      of product trade marks.                                                 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 manda-
                                                                              tory requirements and, therefore, by failing to guarantee the
      When examining the ground for refusing registration in                  protection of workers, the Italian Republic has failed to fulfil
      Article 3(1)(c) of First Directive 89/104 in a concrete case,           its obligations under Article 4(1) of, and the sixth sentence of
      regard must be had to the public interest underlying that               paragraph 2.1, the second sentence of paragraph 2.2, the
      provision, which is that all three-dimensional shape of product         second to fourth sentences of paragraph 2.3, and the second
      trade marks which consist exclusively of signs or indications           to fifth indents of the second sentence of paragraph 2.8 of
      which may serve to designate the characteristics of the goods or        Annex I to, Council Directive 89/655/EEC of 30 November
      service within the meaning of that provision should be freely           1989 concerning the minimum safety and health requirements
      available to all and, subject always to Article 3(3) of the             for the use of work equipment by workers at work (second
      Directive, cannot be registered.                                        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), and J.N. Cunha Rodrigues,
                                                                              Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
                                                                              given a judgment on 10 April 2003, in which it:
( 1) OJ C 150 of 19.05.2001.
                                                                              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