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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pfeiffer Grosshandel (Free movement of goods) [1999] EUECJ C-255/97 (11 May 1999) URL: http://www.bailii.org/eu/cases/EUECJ/1999/C25597.html Cite as: [1999] EUECJ C-255/97 |
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JUDGMENT OF THE COURT
11 May 1999 (1)
(Articles 30 and 52 of the EC Treaty (now, after amendment, Articles 28 EC and 43 EC) - Industrial and commercial property - Trade name)
In Case C-255/97,
REFERENCE to the Court under Article 234 EC (ex Article 177) by the Handelsgericht Wien (Austria) for a preliminary ruling in the proceedings pending before that court between
Pfeiffer Großhandel GmbH
and
Löwa Warenhandel GmbH
on the interpretation of Articles 30 and 52 of the EC Treaty (now, after amendment, Articles 28 EC and 43 EC),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn and P. Jann, Presidents of Chambers, J.C. Moitinho de Almeida, C. Gulmann (Rapporteur), J.L. Murray, H. Ragnemalm, L. Sevón and M. Wathelet, Judges,
Advocate General: J. Mischo,
Registrar: H. von Holstein, Assistant Registrar,
after considering the written observations submitted on behalf of:
- Pfeiffer Großhandel GmbH, by Johannes Hintermayr, Rechtsanwalt, Linz,
- Löwa Warenhandel GmbH, by Andreas Foglar-Deinhardstein, Rechtsanwalt, Vienna,
- the Austrian Government, by Christine Stix-Hackl, Gesandte in the Federal Ministry of Foreign Affairs, acting as Agent,
- the Commission of the European Communities, by Berend Jan Drijber, of its Legal Service, acting as Agent, assisted by Bertrand Wägenbaur, Rechtsanwalt, Hamburg,
having regard to the Report for the Hearing,
after hearing the oral observations of Pfeiffer Großhandel GmbH, represented by Johannes Hintermayr and Georg Minichmayr, Rechtsanwälte, Linz; Löwa Warenhandel GmbH, represented by Jürgen Brandstätter, Rechtsanwalt, Vienna; and the Commission, represented by Bertrand Wägenbaur, at the hearing on 26 May 1998,
after hearing the Opinion of the Advocate General at the sitting on 7 July 1998,
gives the following
August 1969. Pfeiffer sells a range of goods, primarily in the food and drink sector, under the trademark 'Plus wir bieten mehr', which was registered in Austria with priority from 22 September 1989.
- Austrian case-law interprets Paragraph 9 of the UWG as protecting trade marks and specific designations of undertakings only if they are distinctive
- that is to say, if they are special and individual in some respect which by its very nature distinguishes the bearer from other persons - or if they have become so well known in the business world that they have acquired a distinctive force which does not depend on originality;
- according to Austrian case-law, 'Plus' - when used as the name of an undertaking which markets a wide range of goods (not only foodstuffs, but also other household goods) in supermarkets - is original, not merely descriptive, and as such qualifies for protection; and
- consequently, Löwa's use of the trade name 'Plus', with or without additional text, infringes Paragraph 9 of the UWG because Pfeiffer has priority.
'Is Article 30 or Article 52 et seq. of the EC Treaty to be interpreted as precluding the application of national provisions which require that, in the case of trade marks or designations of undertakings which are liable to be confused, the one with earlier priority is to be protected, and hence prohibit an undertaking from using, in three provinces of Austria, a trade mark or designation under which companies in the same group lawfully operate in other Member States?'
Community and on legal persons within the meaning of Article 48 EC. Subject to the exceptions and conditions specified, it includes the right to take up and pursue all types of self-employed activity in the territory of any other Member State, to set up and manage undertakings, and to set up agencies, branches or subsidiaries.
Costs
30. The costs incurred by the Austrian Government and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the question referred to it by the Handelsgericht Wien by order of 24 March 1997, hereby rules:
Articles 30 and 52 of the EC Treaty (now, after amendment, Articles 28 EC and 43 EC) do not preclude a provision of national law which prohibits, where there is a risk of confusion, the use of a trade name as the specific designation of an undertaking.
Rodríguez Iglesias
Moitinho de Almeida
Ragnemalm
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Delivered in open court in Luxembourg on 11 May 1999.
R. Grass G.C. Rodríguez Iglesias
Registrar President
1: Language of the case: German.