Opinion of the Advocate General — ECLI:EU:C:2002:614
Date: 2002-10-24
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 
1. Approximation of laws — Trade marks — Directive 89/104 — Where registration 
of a trade mark may be refused or the trade mark declared invalid — Trade mark 
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SUMMARY — JOINED CASES C-53/01 TO C-55/01 
devoid of distinctive character — Determination whether a three-dimensional shape of 
product trade mark has a distinctive character —· Application of the same criteria as 
for other types of mark 
(Council Directive 89/104, Art. 3(1)(b) and 3(3)) 
2. Approximation of laws —· Trade marks — Directive 89/104 — Where registration 
of a trade mark may be refused or the trade mark declared invalid — Three-
dimensional shape of product marks — Specific grounds for refusal in 
Article 3(1)(e) — Preliminary obstacle not preventing the application of the other 
grounds for refusing registration — Examination of the grounds for refusal in 
Article 3(1)(c) — Account taken of the public interest in preserving the availability 
of certain marks 
(Council Directive 89/104, Art. 3(1)(c) and (e) and 3(3)) 
1. When assessing the distinctiveness of a 
three-dimensional shape of product 
trade mark for the purposes of 
Article 3(1)(b) of First Directive 89/104 
relating to trade marks, a stricter test 
than that used for other types of trade 
mark must not be applied. 
It is nevertheless true that, in view of 
the test for assessing distinctiveness, it 
may in practice be more difficult to 
establish distinctiveness in relation to a 
shape of product mark than a word or 
figurative trade mark. But whilst that 
may explain why such a mark is 
refused registration, it does not mean 
that it cannot acquire distinctive char­
acter following the use that has been 
made of it and thus be registered as a 
trade mark under Article 3(3) of the 
directive. 
(see paras 48-49, operative part 1) 
2. The specific grounds for refusing the 
registration of certain signs consisting 
of the shape of the product set out 
expressly in Article 3(1)(e) of First 
Directive 89/104 relating to trade 
marks constitute a preliminary obstacle 
liable to prevent such signs from being 
registrable. However, even if that pre­
liminary obstacle is overcome, neither 
the wording of Article 3(1) of the 
directive nor the scheme of the direc­
tive indicates that theother grounds for 
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L I N D E A N D O T H E R S 
refusing registration in that provision 
should not also apply to applications to 
register three-dimensional shape of 
product marks. 
It follows that, independently of 
Article 3(1)(e) of the directive, 
Article 3(1)(c) also has significance 
for three-dimensional shape of product 
trade marks. 
When examining the ground for refus­
ing registration in Article 3(1)(c) in a 
concrete case, regard must be had to 
the public interest underlying thai-
provision, which is that all three-di­
mensional shape of product trade 
marks which consist exclusively of 
signs or indications which may serve 
to designate the characteristics of the 
goods or service within the meaning of 
that provision should be freely avail­
able to all and, subject always to 
Article 3(3) of the directive, cannot be 
registered. 
(see paras 65-66, 70, 77, operative 
part 2) 
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