Opinion of the Advocate General — ECLI:EU:C:2005:474
Date: 2005-07-14
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary of the Judgment 1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) 2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Separate examination of the different grounds for refusal (Council Regulation No 40/94, Art. 7(1)(b) and (c)) 1. With regard to three-dimensional trade marks consisting of the packaging of goods, such as liquids, which are packaged in trade for reasons linked to the very nature of the product, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. In that regard, there is no reason systematically to restrict the sector for the purposes of comparison to the actual goods in respect of which registration is sought. It cannot be excluded that the consumers of a given product may in certain cases be influenced, in their perception of the trade mark which the product bears, by the marketing methods used for other goods which they also use. Thus, depending on the nature of the goods in question and the trade mark applied for, it may be necessary, for the purposes of assessing whether or not the trade mark is devoid of any distinctive character, to take into consideration a wider sector. Restriction of the sector in which the comparison is to be made falls within the appraisal of the facts. (see paras 29, 31-32, 35) 2. Each of the grounds for refusal to register listed in Article 7(1) of Regulation No 40/94 on the Community trade mark is independent of the others and requires separate examination. Moreover, it is appropriate to interpret those grounds for refusal in the light of the general interest which underlies each of them. The general interest to be taken into consideration when examining each of those grounds for refusal may or even must reflect different considerations according to the ground for refusal in question. In that regard, the concept of general interest underlying Article 7(1)(b) of that regulation is indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin. By contrast, the criterion according to which trade marks which are capable of being commonly used, in trade, for the presentation of the goods or services in question may not be registered is relevant in the context of Article 7(1)(c) of Regulation No 40/94 but it is not the yardstick by which Article 7(1)(b) must be interpreted. However, the finding that the trade mark sought is already commonly used in the Community for a category of goods or services and that, therefore, it is not sufficiently unusual for the average consumer to perceive it, per se, as an indication of the specific commercial origin of a product within that category is relevant in the context of Article 7(1)(b). (see paras 59-61, 63, 66-67)