Keywords

Summary



Keywords

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Risk of a monopoly being created in a sign — No exclusive link with a specific ground for refusal — (Council Regulation No 40/94, Art. 7(1)(b) to (e))

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Three-dimensional mark consisting of the get-up of the product — Interest in that get-up remaining available — Effect — (Council Regulation No 40/94, Art. 7(1)(b))

3. Community trade mark — Definition and acquisition of the Community trade mark — Signs capable of constituting a mark — Packaging of the product concerned — Vital for the sale of liquid products — Distinctive character — Requirement — Sign to be immediately perceived by the consumer as an indication of commercial origin — (Council Regulation No 40/94, Art. 7(1)(b))

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Three-dimensional mark — Shape of drinks packaging — Standard appearance — (Council Regulation No 40/94, Art. 7(1)(b))

Summary

1. When Article 7(1)(b) to (e) of Regulation No 40/94 on the Community trade mark is applied, no direct and exclusive link can be established between the risk that a monopoly may be created in a sign and a specific absolute ground for refusal. On the contrary, the absolute grounds for refusal set out in Article 7(1)(b) to (e) of Regulation No 40/94 address the concern of the Community legislature to prevent the grant to one operator of exclusive rights which could hinder competition on the market for the goods or services concerned.

see para. 14

2. The interest that competitors of an applicant for a three-dimensional mark consisting of the product ' s design may have in being able freely to choose shapes and patterns for their own products is not in itself a ground for refusing registration of such a mark, nor a criterion sufficient in itself for the assessment of the mark ' s distinctive character. Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, in excluding the registration of signs devoid of any distinctive character, protects any interest there may be in keeping available various alternatives for a product ' s design only to the extent to which the design of the product in respect of which registration is sought is not capable, a priori and irrespective of the use made of it within the meaning of Article 7(3) of Regulation No 40/94, of functioning as a trade mark, that is to say, of enabling the relevant public to distinguish the product concerned from those having a different trade origin.

see para. 32

3. A sign which fulfils functions other than that of a trade mark is distinctive for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin.

As regards, more particularly, a mark consisting of the packaging of a liquid product in respect of which the mark is sought, the average consumer, who will perceive the packaging first and foremost simply as a means of packaging the product because the product must of necessity be packaged for sale, will see the form of that packaging as an indication of the product ' s commercial origin only if that form may be perceived immediately as such an indication.

see para. 38

4. Three-dimensional trade marks consisting of the get-up of various stand-up pouches in respect of which registration is sought for fruit drinks and fruit juices within Class 32 of the Nice Agreement are devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since the differences between the appearance applied for and the standard appearance of stand-up pouches constitute mere variations on that appearance and since, therefore, the pouches are not sufficiently unusual for the average consumer to perceive them, per se, as an indication of the specific commercial origin of the products within that category.

see paras 34, 42, 52, 57