Case C-321/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 6 June 2003, in the case of Dyson Ltd against Registrar of Trade Marks
Date: 2003-10-04
Institutions: Court of Justice
Subjects: EU trade mark, interpretation of the law, trade-mark law

4.10.2003

EN

Official Journal of the European Union

C 239/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Chancery Division, by order
of that court dated 6 June 2003, in the case of Dyson Ltd
against Registrar of Trade Marks

Action brought on 24 July 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-321/03)

(2003/C 239/01)

(Case C-323/03)

(2003/C 239/02)

Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Chancery Division, dated 6 June
2003, which was received at the Court Registry on 24 July
2003, for a preliminary ruling in the case of Dyson Ltd and
Registrar of Trade Marks on the following questions:

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 24 July
2003 by the Commission of the European Communities,
represented by I. Martínez del Peral and K. Simonsson, acting
as Agents, with an address for service in Luxembourg.

1.

In a situation where an applicant has used a sign (which
is not a shape) which consists of a feature which has a
function and which forms part of the appearance of a
new kind of article, and the applicant has, until the date
of application, had a de facto monopoly in such articles,
is it sufficient, in order for the sign to have acquired a
distinctive character within the meaning of Article 3(3)
of Directive 89/104/EC (1), that a significant proportion
of the relevant public has by the date of application for
registration come to associate the relevant goods bearing
the sign with the applicant and no other manufacturer?

2.

If that is not sufficient, what else is needed in order for
the sign to have acquired a distinctive character and, in
particular, is it necessary for the person who has used the
sign to have promoted it as a trade mark?

( 1) First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks, OJ L040, 11.02.1989, p. 1-7.

The applicant claims that the Court should:

1.

declare that, by maintaining in force rules which:

— allow maritime transport services in the Vigo estuary
to be entrusted to a single operator for a period of
20 years and which include as a criterion for the
award of the right to operate the services experience
in transport in the Vigo estuary, which favours the
existing operator;

— allow seasonal transport services with the islands or
regular transport services between continental ports
to be subject to public-service obligations;

— permit the introduction of a more restrictive system
in force on the date on which the
than that
Regulation entered into force (January 1993), that is
to say, the Decision of 11 June 1984;