(a)

Does the ground for refusal or invalidity in Article 3(1)(e)(i) of Directive 89/104/EEC, (1) as codified in Directive 2008/95/EC, (2) namely that shape trade marks may not consist exclusively of a shape which results from the nature of the goods themselves, refer to a shape which is indispensable to the function of the goods, or can it also refer to the presence of one or more substantial functional characteristics of goods which consumers may possibly look for in the goods of competitors?

(b)

If neither of those alternatives is correct, how should the provision then be interpreted?

(a)

Does the ground for refusal or invalidity in Article 3(1)(e)(iii) of Directive 89/104/EEC, as codified in Directive 2008/95/EC, namely, that (shape) trade marks may not consist exclusively of a shape which gives substantial value to the goods, refer to the motive (or motives) underlying the relevant public’s decision to purchase?

(b)

Does a ‘shape which gives substantial value to the goods’ within the meaning of the aforementioned provision exist only if that shape must be considered to constitute the main or predominant value in comparison with other values (such as, in the case of high chairs for children, safety, comfort and reliability) or can it also exist if, in addition to that value, other values of the goods exist which are also to be considered substantial?

(c)

For the purpose of answering Questions 2(a) and 2(b), is the opinion of the majority of the relevant public decisive, or may the court rule that the opinion of a portion of the public is sufficient in order to take the view that the value concerned is ‘substantial’ within the meaning of the aforementioned provision?

(d)

If the latter option provides the answer to Question 2(c), what requirement should be imposed as to the size of the relevant portion of the public?