Opinion of the Advocate General — ECLI:EU:C:2006:221
Date: 2006-03-30
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment Approximation of laws – Trade marks – Directive 89/104 – Registration of a trade mark refused or trade mark declared invalid – Marks devoid of any distinctive character, descriptive marks and customary marks (Council Directive 89/104, Art. 3(3)) Article 3(3) of First Directive 89/104 relating to trade marks must be interpreted as meaning that the registration of a trade mark can be allowed on the basis of that provision only if it is proven that that trade mark has acquired distinctive character through use throughout the territory of the Member State or, in the case of Benelux, throughout the part of the territory of Benelux in which there exists a ground for refusal. As regards a mark consisting of one or more words of an official language of a Member State or of Benelux, if the ground for refusal exists only in one of the linguistic areas of the Member State or, in the case of Benelux, in one of its linguistic areas, it must be established that the mark has acquired distinctive character through use throughout that linguistic area. In the linguistic area thus defined, it must be assessed whether the relevant class of persons, or at least a significant proportion thereof, identifies the product or service in question as originating from a particular undertaking because of the trade mark. (see paras 23, 28, operative part 1-2)