Notice for the OJ

 

Reference for a preliminary ruling from the Landgericht Nürnberg-Fürth by order of that court of 28 January 2005 in Adam Opel AG v Autec AG(intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.)

(Case C-48/05)

(Language of the case: German)

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Nürnberg-Fürth (Germany) of 28 January 2005, received at the Court Registry on 8 February 2005, in the proceedings between Adam Opel AG and Autec AG (intervener in support of the defendant: Deutscher Verband der Spielwaren-Industrie e.V.) for a preliminary ruling on the following questions of the interpretation of Article 5(l)(a) and Article 6(l)(b) of the First Directive of the Council No 89/104/EC ¹ of 21 December 1988 to approximate the laws of the Member States relating to trade marks:

Does the use of a trade mark registered also for 'toys' constitute use as a trade mark for the purposes of Article 5(1)(a) of the Trade Mark Directive if the manufacturer of a toy model car copies a real car in a reduced scale, including the trade mark of the proprietor of the trade mark as applied to the real car, and markets it?

If the answer to Question in 1 is in the affirmative: is the type of use of the trade mark described in Question 1 an indication of the kind or quality of the model car within the meaning of Article 6(1)(а) of the Trade Mark Directive?

If the answer to Question 2 is in the affirmative:

In cases of this type what are the decisive criteria to be applied in assessing whether the trade mark corresponds to honest practices in industrial or commercial matters?

4.    Is this in particular the case if the manufacturer of the model car applies to the packaging, and to an accessory required in order to use the model, a mark recognisable to the trade as its own trade mark together with its company name and the address of its seat?

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¹ - OJ 1989 L 40, p. 1.