The Opinion of Advocate General Mengozzi was published this afternoon in Case C‑487/07 L’Oréal SA, Lancôme parfums et beauté & Cie and Laboratoires Garnier & Cie v Bellure NV, Malaika Investments Ltd and Starion International Ltd (the smell-alike perfume trade mark reference for a preliminary ruling by the European Court of Justice). His advice to that court is as follows:

"(1) Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a trade mark is not entitled to prohibit use by a third party in comparative advertising of a sign that is identical with that mark for goods or services which are identical with those for which the mark is registered where such use does not affect or is not liable to affect the mark’s essential function of providing a guarantee of origin or any of the mark’s other functions and that is the case even if such use plays a significant role in the promotion of the advertiser’s goods and, in particular, permits that advertiser to take unfair advantage of the mark’s reputation

(2) Article 3a(1)(g) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 97/55/EEC of the European Parliament and of the Council of 6 October 19997, must be interpreted as meaning that it is not possible to conclude on the simple basis of the fact that a trader, in a comparison list, compares his product with a product identified by a well known mark that the advertiser takes unfair advantage of that mark’s reputation and that if, where such an advantage exists, it can be presumed that the public at whom the advertising is directed is caused to associate the proprietor of the well known mark with the advertiser in such a way that the public might associate by way of extension the reputation of the former’s products with those of the latter, it is for the national court to determine whether that advantage is unfair in the light of all the relevant individual circumstances of the case.

(3) Article 3a(1)(h) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that:

– it prohibits an advertisement which alludes, explicitly or by implication, bearing in mind its economic context, to the fact that the advertiser’s product has been manufactured in such a way as to imitate or reproduce a product protected by another person’s mark, even where only one or more of the essential characteristics of that product is alluded to; and,

– consequently, it does not prohibit an advertisement solely on the ground that it states that the advertiser’s product has an essential characteristic that is identical with that of a product bearing a protected trade mark, including well known marks.

(4) Article 5(2) of Directive 89/104 must be interpreted as meaning that:

– where a trader uses a sign that is similar to another person’s mark and derives an advantage from this originating in that similarity and in the consequential association of that sign with the positive qualities of that mark, such use may be prohibited if it is without due cause, which cannot be the advantage itself, or, where due cause is shown, if it is apparent, taking such due cause and all the relevant circumstances of the case into account, that that advantage is unfair;

– that prohibition cannot be precluded on account of the fact that there is no effect (or likelihood of any effect) on the mark’s essential function of providing a guarantee of origin, no effect (or likelihood of any effect) on the mark’s distinctive character or reputation and such use has no impact on the sales of the products identified by the mark or on the return on the investments made in connection with that mark".