Internetportal und Marketing GmbH v Richard Schlicht.
Date: 2010-06-03
28. Although the national court has not asked a question on this point, within the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, and to the extent to which the argument of the appellant in the main proceedings affects the resolution of the dispute in those proceedings, it is for the Court to provide the national court with an answer which will be of use to it and enable it to determine the case before it (see, by way of analogy, Case C‑295/97 Piaggio  [1999] ECR I‑3735, paragraph 25).
33. It should, however, be pointed out that the provision in question cannot be examined solely on the basis of the German version, as provisions of European Union law must be interpreted and applied uniformly in the light of the versions existing in all European Union languages (see, to that effect, Case C‑280/04 Jyske Finans  [2005] ECR I‑10683, paragraph 31, and Case C‑187/07 Endendijk  [2008] ECR I-2115, paragraph 22).
35. It must be borne in mind in this regard that, according to settled case‑law, the necessity for uniform application and, accordingly, for uniform interpretation of a Community measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder  [1969] ECR 419, paragraph 3; Joined Cases C-261/08 and C-348/08 Zurita García and Choque Cabrera  [2009] ECR I‑0000, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22).
42. The issue of whether an applicant is acting in bad faith must be the subject of an overall assessment, taking into account all the factors relevant to the particular case (see, by way of analogy, Case C‑529/07 Chocoladefabriken Lindt & Sprüngli  [2009] ECR I‑0000, paragraph 37).
45. In that regard, consideration must first be given to the intention of the appellant in the main proceedings at the time when it filed the application for registration of that mark as a subjective factor which must be determined by reference to the objective circumstances of the particular case (see, to that effect, Chocoladefabriken Lindt & Sprüngli , paragraphs 41 and 42).
49. Secondly, the presentation of the mark at issue may also be relevant in determining whether there is bad faith within the meaning of Article 21(1)(b) of Regulation No 874/2004 (see, by way of analogy, Chocoladefabriken Lindt & Sprüngli , paragraph 50).
74. That argument is misplaced on two grounds. First, it rests on the premise, rejected in paragraphs 31 to 39 of the present judgment, that the list of cases of bad faith in Article 21(3) of Regulation No 874/2004 is exhaustive. Second, it fails to take account of the fact that prior rights can legitimately exist in respect of generic terms. As the Court has already held, European Union law, and, in particular, Article 3(1)(b) and (c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), does not preclude the registration in a Member State, as a national trade mark, of a term borrowed from the language of another Member State in which it is devoid of distinctive character or is descriptive of the goods or services in respect of which registration is sought, unless the relevant parties in the Member State in which registration is sought are capable of identifying the meaning of the term (Case C‑421/04 Matratzen Concord  [2006] ECR I‑2303, paragraphs 26 and 32 and the operative part).