Judgment of the Court (Sixth Chamber) of 20 September 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — The Netherlands) — Benetton Group SpA v G-Star International BV

(Case C-371/06) (1)

(Trade marks - Directive 89/104/EEC - Article 3(1)(e), third indent, and Article 3(3) - Sign - Shape which gives substantial value to goods - Use - Advertising campaigns - Attractiveness of a shape acquired prior to the date of application for registration on account of recognition of it as a distinctive sign)

(2007/C 269/28)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Benetton Group SpA

Defendant: G-Star International BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 3(1)(e), third indent, of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Jeans whose distinctive sign is the features of working or motorcycling clothes with knee pads — Sign consisting of a shape which gives substantial value to the goods

Operative part of the judgment

The third indent of Article 3(1)(e) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be interpreted as meaning that the shape of a product which gives substantial value to that product cannot constitute a trade mark under Article 3(3) of that directive where, prior to the application for registration, it acquired attractiveness as a result of its recognition as a distinctive sign following advertising campaigns presenting the specific characteristics of the product in question.

(1)  OJ C 371, 2.12.2006.