Opinion of the Advocate General — ECLI:EU:C:2007:661
Date: 2007-11-08
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 - unfounded;Appeal - successful
Origin: Germany

Summary of the Judgment 1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Separate assessment of the different grounds for refusal – Interpretation of the grounds for refusal in the light of the general interest underlying each of them – Assessment of the distinctive character of a trade mark analysing only the descriptive character of the mark (Council Regulation No 40/94, Art. 7(1)(b) and (c)) 2. 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)) 1. Even if there is a degree of overlap between the respective scope of the absolute grounds for refusal to register a trade mark set out in Article 7(1)(b) to (d) of Regulation No 40/94 on the Community trade mark, it is nevertheless the case that, according to established case-law, each of the grounds for refusal to register listed in Article 7(1) of Regulation No 40/94 is independent of the others and requires separate examination. Furthermore, the various grounds for refusal must be interpreted in the light of the public interest underlying each of them. The public interest taken into account in the examination of each of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue. In that regard, the notion of general interest underlying Article 7(1)(b) of Regulation No 40/94 is, manifestly, 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. Thus, the distinctive character of a mark cannot be assessed by carrying out solely an analysis of its descriptive character within the meaning of Article 7(1)(c), without a separate examination of the ground for refusal laid down in Article 7(1)(b). Such an analysis fails to take into account the public interest which Article 7(1)(b) of Regulation No 40/94 aims specifically to protect, that is, to guarantee the identity of the origin of the designated product or service. Furthermore, while the criterion according to which a mark composed of descriptive elements could meet the conditions for registration to the extent that the word has become a part of everyday language and has acquired a meaning of its own is relevant in the context of Article 7(1)(c) of Regulation No 40/94, it cannot form a basis for the interpretation of Article 7(1)(b). Although that criterion permits excluding the use of a trade mark to describe a product or a service, nevertheless, it does not allow it to be determined whether a mark is capable of guaranteeing the identity of the origin of the designated product or service to the consumer or end user. (see paras 54-56, 58-59, 61-62) 2. In relation to the services in question, the word sign EUROHYPO, for which registration is sought for ‘financial affairs; monetary affairs; real estate affairs; provision of financial services; financing’ in Class 36, within the meaning of the Nice Agreement, is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. In the field covered by the trade mark application, the average German-speaking consumer understands the word sign EUROHYPO as referring, as a whole and in general, to financial services requiring real securities and, in particular, to mortgage loans paid in the currency of the European Economic and Monetary Union. Furthermore, there is no additional element which would allow the view to be reached that the combination, created by the current and usual components EURO and HYPO, is unusual or might have its own meaning which, in the perception of the relevant public, distinguishes the services offered by the trade mark applicant from those of a different commercial origin. Therefore, the relevant public will perceive the trade mark in question as providing details of the type of services which it designates and not as indicating the origin of those services. (see paras 68-69)