Opinion of the Advocate General — ECLI:EU:C:2018:3
Date: 2018-01-11
Language of the case: German
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 6 September 2018 1. Appeal — Grounds — Incorrect assessment of the facts and evidence — Review by the Court of the assessment of the evidence — Excluded save where the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of a product or service — Assessment of the descriptive character of a sign — Geographical names (Council Regulation No 207/2009, Art. 7(1)(c)) 3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of a product or service — Assessment of the descriptive character of a sign — Geographical names — Place of marketing (Council Regulation No 207/2009, Art. 7(1)(c)) 4. EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Decisions of national authorities not binding on EU bodies (Council Regulation No 207/2009) 1. See the text of the decision. (see para. 29) 2. Article 7(1)(c) of Regulation No 207/2009 on the European Union trade mark pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is sought may be freely used by all, including as collective marks or as part of complex or graphic marks. That provision therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks. As regards, more particularly, signs or indications which may serve to designate the geographical origin of the categories of goods in respect of which registration of the mark is sought, especially geographical names, it is in the public interest that they remain available, not least because they may be an indication of the quality and other characteristics of the categories of goods concerned, and may also, in various ways, influence consumer tastes by, for instance, associating the goods with a place that may give rise to a favourable response. A sign may not be refused registration on the basis of Article 7(1)(c) of that regulation unless the geographical name in respect of which registration as a trade mark is sought designates a place which is associated in the mind of the relevant class of persons, at the time the application for registration is made, with the category of goods concerned, or it is reasonable to assume that such an association may be established in the future. However, it should be noted that, in principle, Article 7(1)(c) of that regulation does not preclude the registration of geographical names which are unknown to the relevant class of persons — or at least unknown as the designation of a geographical location — or of names in respect of which, because of the type of place they designate, such persons are unlikely to believe that the category of goods concerned originates there. (see paras 36-39) 3. The Court has held that, whilst an indication of the geographical origin of a product usually indicates the place where that product was or could be manufactured, the connection between a product and a geographical location might depend on other ties, such as the fact that that product was conceived and designed in that geographical location. Accordingly, the Court did not confine such ties to the place of manufacture of the goods concerned. However, that does not necessarily imply that the place of marketing may serve as a tie connecting the goods and services covered by the contested trade mark with the place concerned, even in the case of items sold as souvenirs. The mere fact that those goods and services are offered in a particular place cannot constitute a descriptive indication of the geographical origin of those goods and services, in so far as the place where those goods and services are sold is not capable, as such, of designating characteristics, qualities or distinctive features connected with the geographical origin of those goods and services, such as a craft, a tradition or a climate which is a characteristic of a particular place. (see paras 48-50) 4. See the text of the decision. (see para. 72)