C-533/06

O2 Holdings & O2 (UK) V Hutchinson 3G UK Limited

Where a trader, in an advertisement for his own goods or services uses a registered trade mark owned by a competitor for the purpose of comparing the characteristics (and in particular the price) of goods or services marketed by him with the characteristics (and in particular the price) of the goods or services marketed by the competitor under that mark in such a way that it does not cause confusion or otherwise jeopardize the essential function of the trade mark as an indication of origin, does his use fall within either (a) or (b) of Art. 5 of Directive 89/1041?

Where a trader uses, in a comparative advertisement, the registered trade mark of a competitor, in order to comply with Art. 3a of Directive 84/4502 as amended must that use be "indispensable" and if so what are the criteria by which indispensability is to be judged?

In particular, if there is a requirement of indispensability, does the requirement preclude any use of a sign which is not identical to the registered trade mark but is closely similar to it?