AS v Deutsches Patent- und Markenamt.
Date: 2019-09-12
18


It cannot a priori be excluded that a sign comprising a hashtag, such as that at issue in the main proceedings, is capable of distinguishing the goods and or services in respect of which registration is sought as coming from a particular undertaking and therefore satisfies the condition referred to above. It is in fact possible that such a sign be presented to the public in relation to goods or services and be capable of performing the essential function of a mark, which is to indicate the commercial origin of the goods or services covered.
19


In order to determine whether that is indeed the case, the competent administrative and judicial authorities must inquire whether the sign in question has ‘distinctive character’ within the meaning of Article 3 of Directive 2008/95. That distinctive character can be intrinsic, within the meaning of Article 3(1)(b), or be acquired through use, within the meaning of Article 3(3) (see, in particular, judgments of 19 June 2014, Oberbank and Others, C‑217/13 and C‑218/13, EU:C:2014:2012, paragraph 38, and of 16 September 2015, Société des Produits Nestlé, C‑215/14, EU:C:2015:604, paragraphs 60 and 62).
20


The question whether the sign has distinctive character must be assessed by reference to, first, the goods or services in question and, second, the perception of the relevant public, namely the average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect (see, in particular, judgments of 8 April 2003, Linde and Others, C‑53/01 to C‑55/01, EU:C:2003:206, paragraph 41; of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 34; and of 10 July 2014, Apple, C‑421/13, EU:C:2014:2070, paragraph 22).
21


That assessment of the perception of the average consumer must be carried out in concreto, taking into consideration all the relevant facts and circumstances (see, in particular, judgments of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraphs 33 and 35, and of 6 July 2017, Moreno Marín, C‑139/16, EU:C:2017:518, paragraph 24).
22


As regards the relevant facts and circumstances for assessing that perception, it should be pointed out that the applicant for a trade mark is not required to indicate or even to know precisely, on the date on which his application for registration of a mark is filed or of the examination of that application, the use he will make of the mark applied for, if registered. Even following registration of the mark, he has a period of 5 years for beginning actual use consistent with the essential function of a trade mark (judgment of 15 January 2009, Silberquelle, C‑495/07, EU:C:2009:10, paragraphs 3 and 17 and the case-law cited; see also, with regard to Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark (OJ 2009 L 78, p. 1), judgment of 21 December 2016, Länsförsäkringar, C‑654/15, EU:C:2016:998, paragraph 26).
27


It is necessary to prevent the register of trade marks, which must be appropriate and precise (judgment of 12 December 2002, Sieckmann, C‑273/00, EU:C:2002:748, paragraph 50), from including signs which serve to distinguish the proprietor’s goods or services from those of other undertakings solely in the case of a very specific use which the proprietor is unlikely to make.
28


In that connection, it should be borne in mind that, for reasons of legal certainty and sound administration, the examination of any application for registration must be not only full but also stringent, in order to prevent marks from being improperly registered (see, in particular, judgments of 6 May 2003, Libertel, C‑104/01, EU:C:2003:244, paragraph 59, and of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77).
32


In the light of the clarifications provided by the present judgment, and having regard to the case-law holding that provisions which are identical in their content in the directive to approximate the laws of the Member States relating to trade marks and in the regulation on the European Union trade mark must be interpreted in the same way (see, in particular, judgments of 12 January 2006, Deutsche SiSi-Werke, C‑173/04 P, EU:C:2006:20, paragraph 29, of 6 July 2017, Moreno Marín, C‑139/16, EU:C:2017:518, paragraph 27, and of 25 July 2018, Mitsubishi Shoji Kaisha and Mitsubishi Caterpillar Forklift Europe, C‑129/17, EU:C:2018:594, paragraph 29), the approach taken in paragraph 55 of the order of the Court of 26 April 2012, Deichmann v OHIM (C‑307/11 P, not published, EU:C:2012:254), cited by the referring court, which relates to Article 7(1)(b) of Regulation No 40/94, the content of which matches that of Article 3(1)(b) of Directive 2008/95, remains relevant only in those cases where it appears that solely one type of use is practically significant in the economic sector concerned.
33


It is clear from all the foregoing that the answer to the question referred is that Article 3(1)(b) of Directive 2008/95 must be interpreted as meaning that in examining the distinctive character of a sign in respect of which registration as a trade mark is sought, all the relevant facts and circumstances must be taken into account, including all the likely types of use of the mark applied for. The latter correspond, in the absence of other indications, to the types of use which, in the light of the customs in the economic sector concerned, can be practically significant.