Pippig Augenoptik GmbH & Co. KG v Hartlauer Handelsgesellschaft mbH and Verlassenschaft nach dem verstorbenen Franz Josef Hartlauer.
Date: 2003-04-08
35.  As the Court has already held, that is a broad definition covering all forms of comparative advertising, so that, in order for there to be comparative advertising, it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers (Case C-112/99   Toshiba Europe   [2001] ECR I-7945, paragraphs 30 and 31).
42.  Thus, the provisions of Directive 84/450 on the conditions for comparative advertising to be lawful on the one hand refer to Article 7(1), as regards the definition of misleading advertising (Article 3a(1)(a)) and, on the other hand, exclude the application of that same provision (Article 7(2)).  Faced with that apparent textual contradiction, those provisions must be interpreted in such a way as to take account of the objectives of Directive 84/450 and in the light of the case-law of the Court according to which the conditions required of comparative advertising must be interpreted in the sense most favourable to it (Toshiba Europe  , paragraph 37).
44.  It follows that Directive 84/450 carried out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be lawful.  Such a harmonisation implies by its nature that the lawfulness of comparative advertising throughout the Community is to be assessed solely in the light of the criteria laid down by the Community legislature.  Therefore, stricter national provisions on protection against misleading advertising cannot be applied to comparative advertising as regards the form and content of the comparison.
49.  That is also the result of Article 3a(1)(d), (e) and (g) of Directive 84/450.  Those provisions set out three conditions for comparative advertising to be lawful, requiring, respectively, that it does not create confusion in the market place between the brand names of the advertiser and those of a competitor, that it does not discredit or denigrate the brands of a competitor, and that it does not take unfair advantage of the reputation of a competitor's brand.  It follows that, where the comparison does not have the intention or effect of giving rise to such situations of unfair competition, the use of a competitor's brand name is permitted by Community law.
50.  Moreover, the Court has already held that the use of another person's trade mark may be legitimate where it is necessary to inform the public of the nature of the products or the intended purpose of the services offered (Toshiba Europe  , paragraph 34).
53.  In cases where the brand name of the products may significantly affect the buyer's choice and the comparison concerns rival products whose respective brand names differ considerably in the extent to which they are known, omission of the better-known brand name goes against Article 3a(1)(a) of Directive 84/450, which lays down one of the conditions for comparative advertising to be lawful.
55.  It is, however, for the national court to verify in each case, having regard to all the relevant factors of the case which is brought before it, whether the conditions set out in paragraph 53 of this judgment are met, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (Case C-220/98   Estee Lauder   [2000] ECR I-117, paragraphs 27 and 30).
64.  Secondly, it is clear from the second recital in the preamble to Directive 97/55 that comparative advertising is designed to enable consumers to make the best possible use of the internal market, given that advertising is a very important means of creating genuine outlets for all goods and services throughout the Community.
80.  Concerning the first part of the question, the Court takes the view that comparing rival offers, particularly as regards price, is of the very nature of comparative advertising.  Therefore, comparing prices cannot in itself entail the discrediting or denigration of a competitor who charges higher prices, within the meaning of Article 3a(1)(e) of Directive 84/450.
81.  The choice as to the number of comparisons which the advertiser wishes to make between the products which he is offering and those offered by his competitors falls within the exercise of his economic freedom.  Any obligation to restrict each price comparison to the average prices of the products offered by the advertiser and those of rival products would be contrary to the objectives of the Community legislature.
82.  In the words of the second recital in the preamble to Directive 97/55, comparative advertising must help demonstrate objectively the merits of the various comparable products.  Such objectivity implies that the persons to whom the advertising is addressed are capable of knowing the actual price differences between the products compared and not merely the average difference between the advertiser's prices and those of its competitors.