Alfred Strigl — Deutsches Patent- und Markenamt and Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH v Öko-Invest Verlagsgesellschaft mbH.
Date: 2012-03-15
20. As the national court has referred, on either a cumulative or an alternative basis, to the two grounds for refusal to register or for invalidity set out in Article 3(1)(b) and (c) of the directive, it should be noted, first of all, that, although each of the grounds for refusal to register listed in Article 3(1) of the directive is independent of the others and calls for separate examination, there is none the less a clear overlap between the scope of each of the grounds for refusal set out in Article 3(1)(b) and (c) (see, to that effect, Case C‑363/99 Koninklijke KPN Nederland  [2004] ECR I‑1619, paragraph 85).
21. Thus, a sign which, in relation to the goods or services in respect of which its registration as a mark is applied for, has descriptive character for the purposes of Article 3(1)(c) of the directive is therefore necessarily devoid of any distinctive character as regards those goods or services, within the meaning of Article 3(1)(b) of that directive (see Koninklijke KPN Nederland , paragraph 86, and Case C‑51/10 P Agencja Wydawnicza Technopol  v OHIM  [2011] ECR I‑0000, paragraph 33 and the case-law cited).
22. Furthermore, the various grounds for refusal must be interpreted in the light of the general interest which underlies each of them. The general interest taken into account in the examination of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue (see Joined Cases C‑456/01 P and C‑457/01 P Henkel  v OHIM [2004] ECR I‑5089, paragraphs 45 and 46, and Case C‑329/02 P SAT.1  v OHIM  [2004] ECR I‑8317, paragraph 25).
23. As regards verbal expressions which consist of a combination of elements, the Court has made it clear that the descriptive character of a mark may be assessed, in part, in relation to each of those elements, taken separately, but must, in any event, also be established in relation to the whole which they comprise (see, to that effect, Case C‑273/05 P OHIM v Celltech R & D  [2007] ECR I‑2883, paragraphs 76 and 79 and the case-law cited).
30. In that regard, it must be noted that Article 3(1)(b) of the directive is intended to preclude registration of trade marks which are devoid of the distinctive character which alone renders them capable of fulfilling the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish that product or service from others which have another origin (see Case C‑299/99 Philips  [2002] ECR I‑5475, paragraph 30, and SAT.1  v OHIM , paragraph 23).
31. The general interest underlying Article 3(1)(c) of the directive is that of ensuring that descriptive signs relating to one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services (see Agencja Wydawnicza Technopol  v OHIM , paragraph 37 and the case-law cited).
35. Furthermore, there is no additional element which would allow the view to be taken that the juxtaposition of the word combination and the letter sequence is unusual or might have its own meaning which, in the perception of the relevant public, distinguishes the services offered from those of a different commercial origin (see, to that effect, Case C‑304/06 P Eurohypo v OHIM [2008] ECR I‑3297, paragraph 69).
36. By contrast, the mere fact of bringing a letter sequence, as an abbreviation, and a word combination together, without introducing any unusual variations, is liable to result in a verbal expression consisting exclusively of signs or indications which may serve, in trade, to designate characteristics of the services concerned (see, to that effect, Koninklijke KPN Nederland , paragraph 98).
39. It follows that, if the relevant public perceive the marks at issue in the main proceedings, considered overall, as providing information on the characteristics of the financial services which they designate, those marks should then be considered to be descriptive, within the meaning of Article 3(1)(c) of the directive, and, therefore, as being necessarily devoid of any distinctive character with regard to those services within the meaning of Article 3(1)(b) of the directive (see, to that effect, Koninklijke KPN Nederland , paragraph 86).