Judgment — ECLI:EU:C:2013:253
Date: 2013-04-18
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 18 April 2013 1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Use of a mark as part of a registered trade mark or in conjunction with a registered trade mark (Council Regulation No 40/94, Art. 7(3)) 2. Community trade mark — Observation of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Trade mark used only as one element of a composite mark or in conjunction with another mark (Council Regulation No 40/94, Art. 15(1)) 1. The acquisition of distinctive character by a mark may result both from the use, as part of a registered trade mark, of a component thereof and from the use of a separate mark in conjunction with a registered trade mark. In both cases it is sufficient that, in consequence of such use, the relevant class of persons actually perceive the goods or service, designated exclusively by the mark applied for, as originating from a given undertaking. (see para. 27) 2. The condition of genuine use of a trade mark, within the meaning of Article 15(1) of Regulation No 40/94 on the Community trade mark, may be satisfied where a registered trade mark, which has become distinctive as a result of the use of another composite mark of which it constitutes one of the elements, is used only through that other composite mark, or where it is used only in conjunction with another mark, and the combination of those two marks is, furthermore, itself registered as a trade mark. Nevertheless, a registered trade mark that is used only as part of a composite mark or in conjunction with another mark must continue to be perceived as indicative of the origin of the product at issue for that use to be covered by the term ‘genuine use’ within the meaning of Article 15(1). (see paras 35, 36, operative part)