Opinion of the Advocate General — ECLI:EU:C:2004:23
Date: 2004-01-15
Language of the case: German
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: Germany

Summary of the Judgment Approximation of laws – Trade marks – Directive 89/104 – Signs capable of constituting a trade mark – Colours or combinations of colours – Conditions – Requirement for the competent authority to examine the other conditions for registration – Scope of the examination (Council Directive 89/104, Arts 2 and 3) Colours or combinations of colours which are the subject of an application for registration as a trade mark, claimed in the abstract, without contours, and in shades which are named in words by reference to a colour sample and specified according to an internationally recognised colour classification system may constitute a trade mark for the purposes of Article 2 of the First Trade Marks Directive 89/104 where: – it has been established that, in the context in which they are used, those colours or combinations of colours in fact represent a sign, and – the application for registration includes a systematic arrangement associating the colours concerned in a predetermined and uniform way, as the mere juxtaposition of two or more colours, without shape or contours, or a reference to two or more colours ‘in every conceivable form’ does not exhibit the qualities of precision and uniformity required by Article 2 of the directive, and/or – the colours or combinations of colours in question are capable of conveying precise information, particularly as regards the origin of a product or service. Even if a combination of colours satisfies the requirements for constituting a trade mark for the purposes of Article 2 of the directive, it is still necessary for the competent authority for registering trade marks to decide whether the combination claimed fulfils the other requirements laid down, particularly in Article 3 of the directive, for registration as a trade mark in relation to the goods or services of the undertaking which has applied for its registration. Such an examination must take account of all the relevant circumstances of the case, including any use which has been made of the sign in respect of which trade mark registration is sought. That examination must also take account of the public interest in not unduly restricting the availability of colours for other traders who market goods or services of the same type as those in respect of which registration is sought. (see paras 34, 37, 42, operative part)