Netto Marken-Discount AG & Co. KG v Deutsches Patent- und Markenamt.
Date: 2014-07-10
31. It should be noted at the outset that, to be capable of constituting a trade mark, the subject-matter of the application for registration must, in accordance with Article 2 of Directive 2008/95, satisfy three conditions. First, it must be a sign. Secondly, that sign must be capable of graphic representation. Thirdly, the sign must be capable of distinguishing the ‘goods’ or ‘services’ of one undertaking from those of other undertakings (see, concerning Article 2 of Directive 89/104, judgments in Libertel C‑104/01 EU:C:2003:244, paragraph 23; Heidelberger Bauchemie C‑49/02 EU:C:2004:384, paragraph 22, and Dyson C‑321/03 EU:C:2007:51, paragraph 28).
32. In that regard, concerning the concept of ‘services’, it should be pointed out that that concept has not been defined by the EU legislature and that, in order to avoid the existence of varying requirements for registration of trade marks according to national legislation, it is necessary to supply a uniform interpretation of that concept (see, to that effect, judgment in Praktiker Bau- und Heimwerkermärkte C‑418/02 EU:C:2005:425, paragraphs 28 to 33).
33. For the purpose of such an interpretation, the Court has already held, in a case concerning an application for registration of a trade mark brought by a retail trader, that services provided in connection with retail trade of goods can constitute services. The retail trade of goods includes, in addition to the sale itself of those goods, other activities of the retail trader, such as selecting an assortment of goods offered for sale and a variety of services aimed at inducing the consumer to purchase those goods from the trader in question rather than from a competitor (see, to that effect, Praktiker Bau- und Heimwerkermärkte  EU:C:2005:425, paragraphs 34, 39 and 52).
37. Those services are covered, in that event, by the concept of ‘services’ within the meaning of Article 2 of Directive 2008/95. As is set out in recital 13 in its preamble, the provisions of that directive must be entirely consistent with those of the Paris Convention and must not affect the obligations of the Member States under that convention. Since the Nice Agreement was adopted pursuant to that convention, Article 2 of that directive may not be interpreted in a way which excludes from the concept of ‘services’ referred to by that article supplies of services which are covered by one of the classes of services included in the Nice Classification (see, by analogy, judgment in Chartered Institute of Patent Attorneys C‑307/10 EU:C:2012:361, paragraph 52).
42. It must be recalled at the outset that the registration of a mark in a public register has the aim of making it accessible to the competent authorities and to the public, particularly to economic operators ( Heidelberger Bauchemie  EU:C:2004:384, paragraph 28, and Chartered Institute of Patent Attorneys  EU:C:2012:361, paragraph 46).
45. In order to comply with that requirement, it is not necessary for the person applying for registration of a mark with respect to a bringing together service to specify in detail each of the activities making up that service (see, to that effect, Praktiker Bau- und Heimwerkermärkte  EU:C:2005:425, paragraph 49, and Chartered Institute of Patent Attorneys  EU:C:2012:361, paragraph 45). A description such as that in the application for registration submitted by Netto Marken-Discount, according to which the service in question relates, particularly, to ‘the bringing together, for the benefit of others, of a variety of services enabling customers conveniently to purchase those services, especially services provided by retail stores, wholesale outlets, through mail order catalogues or by means of electronic media, for example websites or television shopping programmes’, allows the competent authorities and economic operators to understand that the application is made in respect of a service which consists in selecting and offering an assortment of services so that the consumer can choose between them from a single point of contact.
46. It is, on the other hand, necessary that the person filing the application for registration of a trade mark with respect to a service of bringing together services should identify the latter with sufficient clarity and precision (see, by analogy, Praktiker Bau- und Heimwerkermärkte  EU:C:2005:425, paragraph 50, and Chartered Institute of Patent Attorneys  EU:C:2012:361, paragraph 45).
55. Consequently, on the basis of the Court’s settled case-law according to which a request for a preliminary ruling brought by a national court must be rejected where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main proceedings or its purpose (see, inter alia, judgments in Cipolla and Others C‑94/04 and C‑202/04 EU:C:2006:758, paragraph 25, and Jakubowska C‑225/09 EU:C:2010:729, paragraph 28), the third question must be declared to be inadmissible.
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