Estée Lauder Cosmetics GmbH & Co. OHG v Lancaster Group GmbH.
Date: 2000-01-13
13 In the main proceedings, Estée Lauder argues that the term `lifting' is misleading because it gives purchasers the impression that use of the product will obtain results which, above all in terms of their lasting effects, are identical or comparable to surgical lifting, whereas this is not the case so far as the cream in point is concerned. It seeks an order restraining the defendant from engaging in the commercial marketing, distribution and promotion of cosmetic products whose name incorporates the term `lifting' (in particular, the cream in question) on the ground that this is incompatible with Paragraph 3 of the UWG, Paragraph 27(1) of the LMBG and Directive 76/768.
14 Whilst admitting that the cream in question does not have the same long-term effect as surgical lifting, Lancaster maintains that it nevertheless has a significant firming effect.  It denies that the expectations entertained by the public with regard to this cream are those alleged by Estée Lauder. It submits that, in any event, the order sought would, if granted, be contrary to Articles 30 and 36 of the Treaty.  Nor is there any justification for the expenditure that would be entailed by the adoption of a new name for the product if Lancaster had to repackage it solely for distribution in Germany, when no objection to the current name has been raised in the other Member States.  The prohibition sought would amount to a disproportionate restriction, given the minor importance of the public interest to be protected, which consists in preventing consumers from being mistaken solely as to the duration of the product's effects.
23 It should be borne in mind that Directive 76/768 provided exhaustively for the harmonisation of national rules on the packaging and labelling of cosmetic products (Case C-150/88 Parfümerie-Fabrik 4711 v Provide [1989] ECR 3891, paragraph 28, and Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder [1994] ECR I-317, paragraph 11).
25 Accordingly, that provision, which is incorporated in a directive primarily designed (according to the second and third recitals in its preamble) to ensure freedom of trade in cosmetic products, defines the measures to be taken in the interests of consumer protection and fair trading, which rank among the imperative requirements which the Court has consistently held may justify restrictions on the free movement of goods within the meaning of Article 30 of the Treaty. Directive
76/768 also seeks to protect human health, within the meaning of Article 36 of the Treaty, in so far as any information which is misleading as to the characteristics of such products could have an impact on public health.
26 However, the measures which the Member States are required to take for the implementation of that provision must be consistent with the principle of proportionality (see, in particular, Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder, cited above, paragraph 16, and Case C-77/97 Unilever [1999] ECR I-431, paragraph 27).
27 It should be borne in mind that when it has fallen to the Court, in the context of the interpretation of Directive 84/450, to weigh the risk of misleading consumers against the requirements of the free movement of goods, it has held that, in order to determine whether a particular description, trade mark or promotional description or statement is misleading, it is necessary to take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, in particular, Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31).
28 That test, based on the principle of proportionality, also applies in the context of the marketing of cosmetic products where, as in the case in the main proceedings, a mistake as to the product's characteristics cannot pose any risk to public health.
30 Although, at first sight, the average consumer - reasonably well informed and reasonably observant and circumspect - ought not to expect a cream whose name incorporates the term `lifting' to produce enduring effects, it nevertheless remains for the national court to determine, in the light of all the relevant factors, whether that is the position in this case.
31 In the absence of any provisions of Community law on this matter, it is for the national court - which may consider it necessary to commission an expert opinion or a survey of public opinion in order to clarify whether or not a promotional description or statement is misleading - to determine, in the light of its own national law, the percentage of consumers misled by that description or statement which would appear to it sufficiently significant to justify prohibiting its use (see Gut Springenheide and Tusky, cited above, paragraphs 35 and 36).