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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