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

– it prohibits an advertisement/advertising message which alludes, explicitly or by implication, also bearing in mind the economic context in which the advertisement is integrated, to the fact that the advertiser’s product has been manufactured in such a way that it imitates or reproduces a product

- even restricted to one or more of its essential characteristics - which is protected by another person’s mark; and, – as such, it [Article 3a(1)(h)] does not already byitself prohibit an advertisement because it includes the statement/declaration that the advertiser’s product possesses an essential characteristic that is identical with that of a product which is protected by a -- possibly well-known -- trade mark.

"81. The fourth question, concerning the interpretation of Article 3a(1)(h) of Directive 84/450, is, in my view, less problematic than the third question. I shall therefore answer it more succinctly.
82. That provision is clear in so far as it prohibits the presentation of goods or services as imitations or replicas (69) of goods or services bearing a protected trade mark or trade name. In my opinion, the concepts of imitation and replica allude to the fact that, in conceiving his own product, the manufacturer did not rely on his own creative resources but attempted, only partly successfully, to endow it with the same characteristics as a product bearing another person’s trade mark or attempted, successfully, to endow it with very similar characteristics (both situations constituting imitations) or has actually succeeded in reproducing entirely the characteristics of the latter product (replicas).
83. The prohibition is therefore aimed at a particular kind of presentation of the goods or services. Contrary to the appellant companies’ submissions, the provision in question is not concerned with counterfeit goods as such for the purpose of prohibiting comparative advertising designed to promote such goods (it should be borne in mind, moreover, that according to the findings of the Court of Appeal, the perfumes marketed by those companies are not counterfeit goods, since it is perfectly lawful in the United Kingdom to manufacture and sell a perfume with a smell identical with or similar to a well‑known luxury perfume). The provision is not even formulated in such a way as to prohibit the comparative advertising of goods or services which may be rightly said to be imitations or replicas of goods or services protected by another person’s mark, contrary to what L’Oréal maintains.
84. The provision does not even appear to be intended to prohibit a positive statement that the advertiser’s product or one of its characteristics and the product protected by another person’s mark or one of its characteristics are equivalent. Accordingly, where the advertiser simply states that his product is equivalent (or has an equivalent characteristic) to the product protected by another person’s mark (or to one of that product’s characteristics), without, however, alluding to the fact that that equivalence is the result of copying the latter mark (or one of its characteristics), it does not seem to me that one product is being presented as an imitation or replica of another. On the other hand, what is prohibited includes, for example – in addition to situations involving explicit admission of imitation or replica of a product bearing another person’s mark – situations in which formulas such as ‘type’ or ‘style’are appended to that mark in describing the advertiser’s product. It is also possible that the advertisement, whilst not containing such a formula or formulas which in a different but none the less explicit manner evoke the idea of imitation or replica, is none the less capable, in the light of its overall presentation and economic context, of communicating such an idea to the public at whom it is directed, even if it does so only by implication."