CELEX: C1999/204/24
Language: en
Date: 1999-07-17 00:00:00
Title: Judgment of the Court of 4 May 1999 in joined Cases C-108/97 and C-109/97 (reference for a preliminary ruling from the Landgericht München I): Windsurfing Chiemsee Produktions- und Vertriebs GmbH (WSC) v Boots- und Segelzubehör Walter Huber (C-108/97) and Franz Attenberger (C-109/97) (Directive 89/104/EEC - Trade marks - Geographical indications of origin)

17.7.1999                 EN                     Official Journal of the European Communities                                            C 204/13
     allowances for his child who resides with him in that Member                   associated with the category of goods in question; it also
     State, he must be in possession of a residence entitlement or a                applies to geographical names which are liable to be used in
     residence permit, whereas for that purpose nationals of that State             future by the undertakings concerned as an indication of the
     are required only to be resident there.                                        geographical origin of that category of goods;
2. The direct effect of Article 3(1) of Decision No 3/80 may not be             — where there is currently no association in the mind of the
     relied on in support of claims relating to benefits in respect of              relevant class of persons between the geographical name and
     periods prior to the date of this judgment except as regards those             the category of goods in question, the competent authority
     persons who, before that date, initiated proceedings or made an                must assess whether it is reasonable to assume that such a
     equivalent claim.                                                              name is, in the mind of the relevant class of persons, capable
                                                                                    of designating the geographical origin of that category of
(1) OJ C 269 of 14.9.1996.                                                          goods;
                                                                                — in making that assessment, particular consideration should
                                                                                    be given to the degree of familiarity amongst the relevant
                                                                                    class of persons with the geographica1 name in question,
                                                                                    with the characteristics of the place designated by that name,
                                                                                    and with the category of good concerned;
                   JUDGMENT OF THE COURT
                                                                                — it is not necessary for the goods to be manufactured in the
                                                                                    geographical location in order for them to be associated with
                             of 4 May 1999                                          it.
in joined Cases C-108/97 and C-109/97 (reference for a                      2. The first sentence of Article 3(3) of the First Directive
preliminary ruling from the Landgericht München I):                             89/104/EEC is to be interpreted as meaning that:
Windsurfing Chiemsee Produktions- und Vertriebs GmbH
(WSC) v Boots- und Segelzubehör Walter Huber (C-
         108/97) and Franz Attenberger (C-109/97) (1)                           — a trade mark acquires distinctive character following the use
                                                                                    which has been made of it where the mark has come to
                                                                                    identify the product in respect of which registration is applied
(Directive 89/104/EEC — Trade marks — Geographical
                                                                                    for as originating from a particular undertaking and thus to
                         indications of origin)
                                                                                    distinguish that product from goods of other undertakings;
                            (1999/C 204/24)
                                                                                — it precludes differentiation as regards distinctiveness by
                                                                                    reference to the perceived importance of keeping the geo-
                    (Language of the case: German)                                  graphical name available for use by other undertakings;
                                                                                — in determining whether a trace mark has acquired distinctive
(Provisional translation; the definitive translation will be published              character following the use which has been made of it, the
                     in the European Court Reports)                                 competent authority must make an overall assessment of the
                                                                                    evidence that the mark has come to identify the product
In Joined Cases C-108/97 and C-109/97: reference to the                             concerned as originating from a particular undertaking and
Court under Article 234 EC (ex Article 177) by the Landgericht                      thus to distinguish that product from goods of other
München I, Germany, for a preliminary ruling in the proceed-                        undertakings;
ings pending before that court between Windsurfing Chiemsee
Produktions- und Vertriebs GmbH (WSC) and Boots- und                            — if the competent authority finds that a significant proportion
Segelzubehör Walter Huber (C-108/97), Franz Attenberger                             of the relevant class of persons identify goods as originating
(C-109/97) — on the interpretation of Articles 3(1)(c) and 3(3)                     from a particular undertaking because of the trade mark, it
of the First Council Directive 89/104/EEC of 21 December                            must hold the requirement for registering the mark to be
1988 to approximate the laws of the Member States relating                          satisfied;
to trade marks (OJ 1989 L 40, p. 1) — the Court, composed
of: G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn,
J.-P. Puissochet, G. Hirsch and P. Jann, Presidents of Chambers,                — where the competent authority has particular difficulty in
G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann (Rappor-                         assessing the distinctive character of a mark in respect of
teur) and D.A.O. Edward, Judges; G. Cosmas, Advocate Gen-                           which registration is applied for, Community law does not
eral; H.A. Rühl, Principal Administrator, for the Registrar, has                    preclude it from having recourse, under the conditions laid
given a judgment on 4 May 1999, in which it has ruled:                              down by its own national law, to an opinion poll as guidance
                                                                                    for its judgment.
1. Article 3(1)(c) of the First Council Directive 89/104/EEC of 21
     December 1988 to approximate the laws of the Member States
     relating to trade marks is to be interpreted as meaning that:          (1) OJ C 166 of 31.5.1997.
     — it does not prohibit the registration of geographical names
          as trade marks solely where the names designate places which
          are, in the mind of the relevant class of persons, currently