Keywords
Summary

Keywords

1. Approximation of laws - Misleading and comparative advertising - Directive 84/450 - Comparative advertising - Scope - Indication, in the catalogue of a supplier of spare parts, of product numbers by which an equipment manufacturer designates his own spare parts - Included - Conditions under which it is lawful - Objective comparison - Infringement - None

(Council Directive 84/450, Art. 2(2a) and 3a(1)(c))

2. Approximation of laws - Misleading and comparative advertising - Directive 84/450 - Comparative advertising - Conditions under which it is lawful - Protection of distinguishing marks - Assessment of the existence of those marks - Criteria - Competence of the national court

(Council Directive 84/450, Art. 3a(1)(g))

3. Approximation of laws - Misleading and comparative advertising - Directive 84/450 - Comparative advertising - Conditions under which it is lawful - Protection of distinguishing marks - Abuse of reputation - Meaning - Criteria of assessment

(Council Directive 84/450, Art. 3a(1)(g))

Summary

1. Articles 2(2a) and 3a(1)(c) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, must be interpreted as meaning that the indication, in the catalogue of a supplier of spare parts and consumable items suitable for the products of an equipment manufacturer, of product numbers (OEM numbers) by which the equipment manufacturer designates the spare parts and consumable items which he himself sells may constitute comparative advertising which objectively compares one or more material, relevant, verifiable and representative features of goods.

( see para. 40, and operative part 1 )

2. It is for the national court to determine whether the equipment manufacturer's product numbers (OEM) numbers by which he designates the spare parts and consumable items sold by him are distinguishing marks within the meaning of Article 3a(1)(g) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, in the sense that they are identified as coming from a particular undertaking. In order to do so, it will have to take into account the perception of an average individual who is reasonably well informed and reasonably observant and circumspect. Account should also be taken of the type of persons at whom the advertising is directed, in particular whether those persons are specialist traders who are much less likely than final consumers to associate the reputation of the equipment manufacturer's products with those of the competing supplier.

( see para. 52 )

3. Article 3a(1)(g) of Directive 84/450 concerning misleading and comparative advertising, as amended by Directive 97/55, must be interpreted as meaning that where product numbers (OEM numbers) of an equipment manufacturer are, as such, distinguishing marks within the meaning of that provision, their use in the catalogues of a competing supplier enables him to take unfair advantage of the reputation attached to those marks only if the effect of the reference to them is to create, in the mind of the persons at whom the advertising is directed, an association between the manufacturer whose products are identified and the competing supplier, in that those persons associate the reputation of the manufacturer's products with the products of the competing supplier. In order to determine whether that condition is satisfied, account should be taken of the overall presentation of the advertising at issue and the type of persons for whom the advertising is intended.

( see para. 60, and operative part 2 )