Keywords
Summary

Keywords

1. Approximation of laws — Trade marks — Directive 89/104 — Refusal of registration or invalidity — Three-dimensional trademarks consisting of the packaging of goods which are packaged in trade for reasons linked to the very nature of the goods — Packaging assimilated to shape of goods — Consequence — Packaging which may constitute the shape of the goods within the meaning of Article 3(1)(e) and serve to designate characteristics of the goods within the meaning of Article 3(1)(c) of the directive — (Council Directive 89/104, Art. 3(1)(c) and (e))

2. Approximation of laws — Trade marks — Directive 89/104 — Refusal of registration or invalidity — Three-dimensional trademarks consisting of the packaging of goods which are packaged for reasons linked to the very nature of the goods — Assessment of distinctiveness — Criteria — (Council Directive 89/104, Art. 3(1)(b))

3. Approximation of laws — Trade marks — Directive 89/104 — Refusal of registration or invalidity — Absence of distinctiveness — Appraisal by the competent authority — Examination solely on the basis of national trade usage — Registration in another Member State of an identical mark for identical goods — Possibility that it is taken into consideration but without being decisive — Registration in another Member State of a similar mark for similar goods — No effect — (Council Directive 89/104, Art. 3(1)(b))

Summary

1. For three-dimensional marks consisting of the packaging of goods which are packaged in trade for reasons linked to the very nature of the goods, the packaging thereof must be assimilated to the shape of the goods, so that that packaging may constitute the shape of the goods within the meaning of Article 3(1)(e) of First Directive 89/104 on trade marks and may, where appropriate, serve to designate characteristics of the packaged goods, including their quality, within the meaning of Article 3(1)(c) of that directive.

see paras 37, 44, operative part 1

2. For three-dimensional trade marks consisting of the packaging of goods which are packaged in trade for reasons linked to the very nature of the product, their distinctive character within the meaning of Article 3(1)(b) of First Directive 89/104 on trade marks must be assessed by reference to the perception of the average consumer of such goods, who is reasonably well informed and reasonably observant and circumspect. Such a trade mark must enable such a consumer to distinguish the product concerned from those of other undertakings without conducting an analytical or comparative examination and without paying particular attention.

see para. 53, operative part 2

3. The distinctive character of a trade mark within the meaning of Article 3(1)(b) of First Directive 89/104 may be assessed solely on the basis of national trade usage, without any need for other administrative investigations to be undertaken in order to determine whether and to what extent identical trade marks have been registered or have been refused registration in other Member States of the European Union.

The fact that an identical trade mark has been registered in one Member State for identical goods or services may be taken into consideration by the competent authority of another Member State among all the circumstances which that authority must take into account in assessing the distinctive character of a trade mark, but it is not decisive regarding the latter ' s decision to grant or refuse registration of a trade mark.

On the other hand, the fact that a trade mark has been registered in one Member State for certain goods or services can have no bearing on the examination by the competent trade mark registration authority of another Member State of the distinctive character of a similar trade mark for goods or services similar to those for which the first trade mark was registered.

see para. 65, operative part 3