# C_2013189EN.01000901.xml

| 29.6.2013 | EN | Official Journal of the European Union | C 189/9 |
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29.6.2013

EN

Official Journal of the European Union

C 189/9

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Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 24 April 2013 — Oberbank AG v Deutscher Sparkassen- und Giroverband e.V.

(Case C-217/13)

2013/C 189/17

Language of the case: German

Referring court

Referring court

Bundespatentgericht

Parties to the main proceedings

Parties to the main proceedings

Appellant: Oberbank AG

Appellant:

Respondent: Deutscher Sparkassen- und Giroverband e.V.

Respondent:

Interested party: Deutsches Patent- und Markenamt

Interested party:

Questions referred

Questions referred

| 1. | Does Article 3(1) and (3) of the directive (1) preclude an interpretation of national law according to which, for an abstract colour mark (in this case: red HKS 13) which is claimed for services in the financial affairs sector, a consumer survey must indicate an adjusted degree of association of at least 70 % in order to form a basis for the assumption that the trade mark has acquired a distinctive character following the use which has been made of it? |
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1.

Does Article 3(1) and (3) of the directive (1) preclude an interpretation of national law according to which, for an abstract colour mark (in this case: red HKS 13) which is claimed for services in the financial affairs sector, a consumer survey must indicate an adjusted degree of association of at least 70 % in order to form a basis for the assumption that the trade mark has acquired a distinctive character following the use which has been made of it?

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| 2. | Is the first sentence of Article 3(3) of the directive to be interpreted to the effect that the time at which the application for the trade mark was filed — and not the time at which it was registered — is also relevant in the case where the trade mark proprietor claims, in his defence against an application for a declaration invalidating the trade mark, that the trade mark acquired a distinctive character, following the use made of it, in any event more than three years after the application, but prior to registration? |
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2.

Is the first sentence of Article 3(3) of the directive to be interpreted to the effect that the time at which the application for the trade mark was filed — and not the time at which it was registered — is also relevant in the case where the trade mark proprietor claims, in his defence against an application for a declaration invalidating the trade mark, that the trade mark acquired a distinctive character, following the use made of it, in any event more than three years after the application, but prior to registration?

| 3. | In the event that, under the abovementioned conditions, the time at which the application was filed is also relevant:
  Is the trade mark to be declared invalid if it is not clarified, and can no longer be clarified, whether it had acquired a distinctive character, following the use made of it, at the time when the application was filed? Or does the declaration of invalidity require the applicant seeking that declaration to prove that the trade mark had not acquired a distinctive character, following the use made of it, at the time when the application was filed? |
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3.

In the event that, under the abovementioned conditions, the time at which the application was filed is also relevant:

Is the trade mark to be declared invalid if it is not clarified, and can no longer be clarified, whether it had acquired a distinctive character, following the use made of it, at the time when the application was filed? Or does the declaration of invalidity require the applicant seeking that declaration to prove that the trade mark had not acquired a distinctive character, following the use made of it, at the time when the application was filed?

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(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 (OJ 2008 L 299, p. 25).

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