Case C-104/01





Libertel Groep BV

v

Benelux-Merkenbureau





(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

«(Trade marks – Approximation of laws – Directive 89/104/EEC – Signs capable of constituting a trade mark – Distinctive character – Colour per se – Orange)»

Opinion of Advocate General Léger delivered on 12 November 2002 I - 0000

Judgment of the Court, 6 May 2003 I - 0000

Summary of the Judgment

1.. Approximation of laws – Trade marks – Directive 89/104 – Signs capable of constituting a trade mark – Colour per se – Conditions

(Council Directive 89/104, Art. 2)

2.. Community law – Interpretation – Directives – Statement of the Council entered in its minutes – Whether to be taken into consideration – Not permissible in the absence of any reference to it in the directive itself

3.. 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 devoid of distinctive character – Possibility that a colour per se may be distinctive – Conditions

(Council Directive 89/104, Art. 3(1)(b) and 3(3))

4.. Approximation of laws – Trade marks – Directive 89/104 – Registration of a new trade mark – Examination of a sign by the competent authority – Need for a thorough examination

(Council Directive 89/104, Arts 2 and 3)

5.. 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 devoid of distinctive character – Determination whether a colour per se has a distinctive character – Account taken of the public interest in not unduly restricting the availability of colours

(Council Directive 89/104, Art. 3(1)(b) and 3(3))

6.. 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 devoid of distinctive character – Recognition of distinctive character of a colour per se – Acquisition through use

(Council Directive 89/104, Art. 3(1)(b))

7.. 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 devoid of distinctive character – Recognition of distinctive character of a colour per se – Conditions

(Council Directive 89/104, Art. 3(1)(b) and 3(3))

8.. 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 devoid of distinctive character – Determination whether a colour has a distinctive character and the public interest in not unduly restricting the availability of colours – Account taken of the number of goods or services for which registration applied for

(Council Directive 89/104, Art. 3(1)(b) and 3(3))

9.. 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 devoid of distinctive character – Determination whether a trade mark has a distinctive character – Examination by reference to the actual situation, including use made of the mark

(Council Directive 89/104, Art. 3(1)(b) and 3(3))

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