# C_2014235EN.01000601.xml

| 21.7.2014 | EN | Official Journal of the European Union | C 235/6 |
| --- | --- | --- | --- |

21.7.2014

EN

Official Journal of the European Union

C 235/6

---

Reference for a preliminary ruling from the High Court of Justice, Chancery Division (United Kingdom) made on 28 April 2014 — Société de Produits Nestlé SA v Cadbury UK Ltd

(Case C-215/14)

2014/C 235/08

Language of the case: English

Referring court

Referring court

High Court of Justice, Chancery Division (England and Wales)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Société de Produits Nestlé SA

Applicant:

Defendant: Cadbury UK Ltd

Defendant:

Questions referred

Questions referred

| 1. | In order to establish that a trade mark has acquired distinctive character following the use that had been made of it within the meaning of Article 3(3) of Directive 2008/95/EC (1), is it sufficient for the applicant for registration to prove that at the relevant date a significant proportion of the relevant class of persons recognise the mark and associate it with the applicant’s goods in the sense that, if they were to consider who marketed goods bearing that mark, they would identify the applicant; or must the applicant prove that a significant proportion of the relevant class of persons rely upon the mark (as opposed to any other trade marks which may also be present) as indicating the origin of the goods? |
| --- | --- |

1.

In order to establish that a trade mark has acquired distinctive character following the use that had been made of it within the meaning of Article 3(3) of Directive 2008/95/EC (1), is it sufficient for the applicant for registration to prove that at the relevant date a significant proportion of the relevant class of persons recognise the mark and associate it with the applicant’s goods in the sense that, if they were to consider who marketed goods bearing that mark, they would identify the applicant; or must the applicant prove that a significant proportion of the relevant class of persons rely upon the mark (as opposed to any other trade marks which may also be present) as indicating the origin of the goods?

1

| 2. | Where a shape consists of three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result, is registration of that shape as a trade mark precluded by Article 3(l)(e)(i) and/or (ii) of Directive 2008/95/EC? |
| --- | --- |

2.

Where a shape consists of three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result, is registration of that shape as a trade mark precluded by Article 3(l)(e)(i) and/or (ii) of Directive 2008/95/EC?

| 3. | Should Article 3(l)(e)(ii) of Directive 2008/95/EC be interpreted as precluding registration of shapes which are necessary to obtain a technical result with regard to the manner in which the goods are manufactured as opposed to the manner in which the goods function? |
| --- | --- |

3.

Should Article 3(l)(e)(ii) of Directive 2008/95/EC be interpreted as precluding registration of shapes which are necessary to obtain a technical result with regard to the manner in which the goods are manufactured as opposed to the manner in which the goods function?

---

(1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks

1

OJ L 299, p. 25

---