Björnekulla Fruktindustrier AB v Procordia Food AB.
Date: 2004-04-29
13. Where a national court is called upon to interpret national law, whether the provisions in question were adopted before or after the directive concerned, it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 249 EC (see, inter alia, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Case C-218/01 Henkel [2004] ECR I-0000, paragraph 60). That applies notwithstanding any contrary interpretation which may arise from the travaux préparatoires for the national rule.
16. It must be noted in that regard that it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in the other Community languages (see, to that effect, inter alia, Case 19/67 Van der Vecht [1967] ECR 345, 354, and Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 15).
20. The essential function of the trade mark is to guarantee the identity of the origin of the marked goods or service to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or service from others which have another origin (see, inter alia, Case C-39/97 Canon [1998] ECR I-5507, paragraph 28, and Case C‑517/99 Merz & Krell [2001] ECR I-6959, paragraph 22). For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the EC Treaty seeks to establish, it must offer a guarantee that all the goods or services bearing it have been produced under the control of a single undertaking which is responsible for their quality ( Canon , paragraph 28).
21. That essential function of trade marks has been incorporated by the Community legislature into Article 2 of the Directive, which provides that signs which are capable of being represented graphically may only constitute a trade mark if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings ( Merz & Krell , paragraph 23).
22. That condition is given effect to in, inter alia, Articles 3 and 12 of the Directive. While Article 3 specifies the circumstances in which a trade mark is incapable, ab initio , of fulfilling its function as an indication of origin, Article 12(2)(a) addresses the situation where the trade mark is no longer capable of fulfilling that function.
23. If the function of the trade mark as an indication of origin is of primary importance to the consumer or end user, it is also relevant to intermediaries who deal with the product commercially. As with consumers or end users, it will tend to influence their conduct in the market.
24. In general, the perception of consumers or end users will play a decisive role. The whole aim of the commercialisation process is the purchase of the product by those persons and the role of the intermediary consists as much in detecting and anticipating the demand for that product as in increasing or directing it.
25. Accordingly, the relevant classes of persons comprise principally consumers and end users. However, depending on the features of the product market concerned, the influence of intermediaries on decisions to purchase, and thus their perception of the trade mark, must also be taken into consideration.
26. The answer to the question referred must therefore be that Article 12(2)(a) of the Directive should be interpreted as meaning that in cases where intermediaries participate in the distribution to the consumer or the end user of a product which is the subject of a registered trade mark, the relevant classes of persons whose views fall to be taken into account in determining whether that trade mark has become the common name in the trade for the product in question comprise all consumers and end users and, depending on the features of the market concerned, all those in the trade who deal with that product commercially.