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SATURDAY, 3 SEPTEMBER 2016
Court of Justice wheeled in to repair the "Repair Clause"
Regular readers of this blog will recall that the issue of replica alloy wheels has exercised the national courts of Europe on several occasions, including the UK case BMW v Round And Metal,  EWHC 2099 (Pat). Now, there is an important referral to the Court of Justice from Civil Court, Milan, First Civil Division, Specialised Section for Business Law under reference C-397/16 Audi AG v Acacia Srl & Pneusgarda Srl. The questions asked are a trifle windy, but essentially they ask whether the "Repair Clause" of Article 110 CDR should be interpreted narrowly so as not to apply to accessory-type products (like alloy wheels) where the customer has a choice about the shape - i.e. "must-match" products. The questions are:
- Do (a) the principles of the free movement of goods and of the freedom to provide services within the internal market, (b) the principle of the effectiveness of EU competition law and of the liberalisation of the internal market, (c) the principles of effet utile and of the uniform application within the European Union of EU law and (d) the provisions of secondary EU law, such as Directive 98/71, and in particular Article 14 thereof, Article 1 of Regulation No 461/2010 and UNECE Regulation No. 124, preclude an interpretation of Article 110 of Regulation No 6/2002, which contains the repair clause, that excludes replica wheels that are aesthetically identical to original equipment wheels and have been approved on the basis of UNECE Regulation No. 124 from the definition of a ‘component part of a complex product’ (that complex product being a motor vehicle) for the purposes of the repair of that complex product and the restoration of its original appearance?
- In the event that the first question is answered in the negative, do the rules on exclusive industrial rights in respect of registered designs, regard being had to the balancing of the interests referred to in the first question, preclude the application of the repair clause to replica complementary products that may be selected freely by the customer, on the basis that the repair clause is to be interpreted restrictively and may be relied upon only with respect to spare parts that come in one particular form only, that is to say, component parts the form of which has been determined in practically immutable fashion with respect to the external appearance of the complex product, to the exclusion of component parts that may be regarded as interchangeable and that may be applied freely, in accordance with the customer wishes?
The mysterious UNECE regulation is here - its relevance is not immediately apparent to the writer.
Posted by: David Musker @ 12.40
repair, Community Design, CJEU, vehicle, wheels,
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