Linde AG (C-53/01), Winward Industries Inc. (C-54/01) and Rado Uhren AG (C-55/01).
Date: 2003-04-08
38.  It follows that a three-dimensional shape of product sign may in principle constitute a trade mark provided those two conditions are met (Case C-299/99   Philips   [2002] ECR I-5475, paragraph 73).
40.  For a mark to possess distinctive character within the meaning of that provision it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from products of other undertakings (see   Philips  , paragraph 35).
41.  In addition, a trade mark's distinctiveness must be assessed by reference to, first, the goods or services in respect of which registration is sought and, second, the perception of the relevant persons, namely the consumers of the goods or services. According to the Court's case-law, that means the presumed expectations of an average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect (see Case C-210/96   Gut Springenheide and Tusky   [1998] ECR I-4657, paragraph 31, and   Philips  , paragraph 63).
42.  Finally, the Court observed in paragraph 48 of its judgment in   Philips   that the criteria for assessing the distinctiveness of three-dimensional shape of product marks are no different from those to be applied to other categories of trade mark.  Article 3(1)(b) of the Directive makes no distinction between different categories of trade mark for the purposes of assessing their distinctiveness.
43.  Only Article 3(1)(e) of the Directive explicitly singles out certain shape of product signs by listing specific grounds for refusing their registration. Under Article 3(1)(e), signs which consist exclusively of the shape which results from the nature of the goods themselves, or the shape of the goods which is necessary to obtain a technical result, or the shape which gives substantial value to the goods cannot be registered or if registered are liable to be declared invalid.
44.  Since Article 3(1)(e) of the Directive is a preliminary obstacle that may prevent a sign consisting exclusively of the shape of a product from being registered, it follows that if any one of the criteria listed in that provision is satisfied, the sign cannot be registered as a trade mark.  Nor, furthermore, can it ever acquire a distinctive character for the purposes of Article 3(3) through the use made of it (see   Philips  , paragraphs 74 to 76).
47.  As paragraph 40 of this judgment makes clear, distinctive character means, for all trade marks, that the mark must be capable of identifying the product as originating from a particular undertaking, and thus distinguishing it from those of other undertakings.
48.  It is nevertheless true, as the Austrian and United Kingdom Governments and the Commission rightly argue, that in view of the test set out in paragraphs 40 and 41 of this judgment it may in practice be more difficult to establish distinctiveness in relation to a shape of product mark than a word or figurative trade mark.  But whilst that may explain why such a mark is refused registration, it does not mean that it cannot acquire distinctive character following the use that has been made of it and thus be registered as a trade mark under Article 3(3) of the Directive.
65.  Those specific grounds for refusing the registration of certain signs consisting of the shape of the product set out expressly in Article 3(1)(e) of the Directive constitute, as paragraph 44 of this judgment makes clear, a preliminary obstacle liable to prevent such signs from being registrable (see   Philips  , paragraphs 74 and 76).
67.  It is clear from Article 3(1) of the Directive that each of the grounds for refusal listed in that provision is independent of the others and calls for separate examination.
68.  It follows that if a three-dimensional shape of product trade mark is not refused registration under Article 3(1)(e) of the Directive, registration may still be refused if it falls within one or more of the categories set out in Article 3(1)(b) to (d).
71.  With regard to the second limb of the second question, according to the Court's case-law, the various grounds for refusing registration set out in Article 3 of the Directive must be interpreted in the light of the public interest underlying each of them (see, to that effect,   Windsurfing Chiemsee  , paragraphs 25 to 27, and   Philips  , paragraph 77).
72.  With regard more specifically to the second situation contemplated by the referring court relating to Article 3(1)(e) of the Directive, for certain three-dimensional shape of product signs, the Court has already held that the rationale of the grounds for refusing registration laid down in Article 3(1)(e) is to prevent trade mark protection from granting its proprietor a monopoly on technical solutions or functional characteristics of a product which a user is likely to seek in the products of competitors (see   Philips  , paragraphs 78 to 80).
73.  According to the Court's case-law, Article 3(1)(c) of the Directive pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is applied for may be freely used by all, including as collective marks or as part of complex or graphic marks.  Article 3(1)(c) therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (see, to that effect,   Windsurfing Chiemsee  , paragraph 25).
75.  The competent authority called upon to apply Article 3(1)(c) of the Directive to such trade marks must determine, by reference to the goods or services for which registration is sought, in the light of a concrete consideration of all the relevant aspects of the application, and in particular the public interest referred to above, whether the ground for refusing registration in that provision applies to the case at hand.  The same concrete examination is required in the case of an application for registration of a three-dimensional shape of product mark.  The authority may not, however, refuse such an application as a matter of principle.