4. In the context of Art 3a(h) of the said Directive what is the meaning of “presenting goods or services as
imitations or replicas” and in particular does this expression cover the case where, without in any way
causing confusion or deception, a party merely truthfully says that his product has a major characteristic
(smell) like that of a well-known product which is protected by a trade mark?
5. Where a trader uses a sign which is similar to a registered trade mark which has a reputation, and that
sign is not confusingly similar to the trade mark, in such a way that:
a. the essential function of the registered trade mark of providing a guarantee of origin is not
impaired or put at risk;
b. there is no tarnishing or blurring of the registered trade mark or its reputation or any risk of either
of these;
c. the trade mark owner’s sales are not impaired; and
d. the trade mark owner is not deprived of any of the reward for promotion, maintenance or
enhancement of his trade mark.
e. But the trader gets a commercial advantage from the use of his sign by reason of its similarity
to the registered mark
does that use amount to the taking of “an unfair advantage” of the reputation of the registered mark within the
meaning of Art 5(2) of the Trade Mark Directive?