# C_2019187EN.01002001.xml

| 3.6.2019 | EN | Official Journal of the European Union | C 187/20 |
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3.6.2019

EN

Official Journal of the European Union

C 187/20

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Judgment of the Court (Fourth Chamber) of 27 March 2019 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Oy Hartwall Ab

(Case C-578/17) (1)

(Reference for a preliminary ruling - Approximation of laws - Trade marks - Directive 2008/95/EC - Articles 2 and 3(1)(b) - Refusal to register or invalidity - Assessment of distinctive character by reference to the actual situation - Classification of a trade mark - Effect - Colour mark or figurative mark - Graphic representation of a mark submitted as a figurative mark - Conditions for registration - Insufficiently clear and precise graphic representation)

(2019/C 187/22)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Oy Hartwall Ab

Interested party: Patentti- ja rekisterihallitus

Operative part of the judgment

| 1. | Articles 2 and 3(1)(b) of 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 must be interpreted as meaning that the classification as a ‘colour mark’ or ‘figurative mark’ given to a sign by the applicant on registration is a relevant factor among others for the purpose of establishing whether that sign can constitute a trade mark within the meaning of Article 2 of the directive and, if so, whether it is distinctive within the meaning of Article 3(1)(b) of that directive, but does not release the competent trade mark authority from its obligation to carry out a global assessment of distinctive character by reference to the actual situation of the mark considered, which means that that authority cannot refuse registration of a sign as a mark on the sole ground that that sign has not acquired distinctive character through use in relation to the goods or services claimed. |
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1.

Articles 2 and 3(1)(b) of 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 must be interpreted as meaning that the classification as a ‘colour mark’ or ‘figurative mark’ given to a sign by the applicant on registration is a relevant factor among others for the purpose of establishing whether that sign can constitute a trade mark within the meaning of Article 2 of the directive and, if so, whether it is distinctive within the meaning of Article 3(1)(b) of that directive, but does not release the competent trade mark authority from its obligation to carry out a global assessment of distinctive character by reference to the actual situation of the mark considered, which means that that authority cannot refuse registration of a sign as a mark on the sole ground that that sign has not acquired distinctive character through use in relation to the goods or services claimed.

| 2. | Article 2 of Directive 2008/95 must be interpreted as precluding, in circumstances such as those in the main proceedings, the registration of a sign as a mark due to an inconsistency in the application for registration, which it is for the referring court to ascertain. |
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2.

Article 2 of Directive 2008/95 must be interpreted as precluding, in circumstances such as those in the main proceedings, the registration of a sign as a mark due to an inconsistency in the application for registration, which it is for the referring court to ascertain.

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(1)  OJ C 412, 4.12.2017.

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