Keywords

Summary



Keywords

1. Approximation of laws - Trade marks - Directive 89/104 - Where registration of a trade mark may be refused or the trade mark declared invalid - Marks composed exclusively of signs or indications which have become customary in the current language or in the practices of the trade - Need for a link between the signs or indications and the goods or services designated by the mark

(Council Directive 89/104, Arts 2 and 3(1)(d))

2. Approximation of laws - Trade marks - Directive 89/104 - Where registration of a trade mark may be refused or the trade mark declared invalid - Marks composed exclusively of signs or indications which have become customary in the current language or in the practices of the trade - Need for a link between the signs or indications and the goods or services designated by the mark - No need for the signs or indications to describe the properties or characteristics of the goods or services designated by the mark

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

Summary

1. The purpose of Article 3(1)(d) of First Directive 89/104 to approximate the laws of the Member States relating to trade marks, which provides that trade marks which consist exclusively of signs or indications which have become customary in the current language or trade practices are to be refused registration, is to prevent the registration of signs or indications that are not capable of distinguishing the goods or services of one undertaking from those of other undertakings and so do not satisfy the criterion laid down in Article 2 of the Directive. The question whether particular signs or indications possess distinctive character cannot, however, be considered in the abstract and separately from the goods or services those signs or indications are intended to distinguish.

It follows that Article 3(1)(d) of the Directive must be interpreted as only precluding registration of a trade mark where the signs or indications of which the mark is exclusively composed have become customary in the current language or in the bona fide and established practices of the trade to designate the goods or services in respect of which registration of that mark is sought.

( see paras 26, 28-29, 31 and operative part )

2. In order for Article 3(1)(d) of First Directive 89/104 to approximate the laws of the Member States relating to trade marks - which provides that trade marks which consist exclusively of signs or indications which have become customary in the current language or trade practices are to be refused registration - to be effective, the scope of that provision should not be limited solely to trade marks which describe the properties or characteristics of the goods or services covered by them.

It follows that Article 3(1)(d) of the Directive must be interpreted as meaning that it subjects refusal to register a trade mark to the sole condition that the signs or indications of which the trade mark is exclusively composed have become customary in the current language or in the bona fide and established practices of the trade to designate the goods or services in respect of which registration of that mark is sought. It is immaterial, when that provision is applied, whether the signs or indications in question describe the properties or characteristics of those goods or services.

( see paras 36, 41 and operative part )