Opinion of the Advocate General — ECLI:EU:C:2005:61
Date: 2005-01-27
Language of the case: English
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: United Kingdom

Summary of the Judgment Approximation of laws – Trade marks – Directive 89/104 – Refusal of registration or nullity – Absence of distinctive character – Distinctive character acquired through use – Use of a mark as part of or in conjunction with a registered trade mark (Council Directive 89/104, Art. 3(3)) The distinctive character of a mark referred to in Article 3(3) of First Directive 89/104 relating to trade marks may be acquired in consequence of the use of that mark as part of or in conjunction with another mark. While, in regard to acquisition of distinctive character through use, the identification, by the relevant class of persons, of the product or service as originating from a given undertaking must be as a result of the use of the mark as a trade mark, in order for the latter condition to be satisfied, the mark in respect of which registration is sought need not necessarily have been used independently. Such identification may be as a result both of the use, as part of a registered trade mark, of a component thereof and of the use of a separate mark in conjunction with a registered trade mark. (see paras 26-27, 30, 32, operative part)