Juan Moreno Marín and Others v Abadía Retuerta, SA.
Date: 2017-07-06
16


In that regard, it should be recalled that the Court has held that Article 3(1)(c) of Directive 2008/95 prohibits the registration of geographical names as trade marks when the names designate places which are, in the mind of the relevant class of persons, currently associated with the category of goods concerned, or when it is reasonable to assume that such an association may be established in the future (see, to that effect, judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraphs 31 and 37).
23


It must be recalled, in that regard, that, according to settled case-law, that provision pursues an aim in the public interest, which implies that all signs or indications which may serve to designate characteristics of the goods or services in respect of which registration is sought remain freely available to all undertakings in order that they may use them when describing the same characteristics of their own goods. Marks consisting exclusively of such signs or indications are not eligible for registration unless Article 3(3) of the directive applies (judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraphs 54 and 55 and the case-law cited).
24


Moreover, the Court has also held that, since registration of a mark is always sought in respect of the goods or services described in the application for registration, the question whether or not any of the grounds for refusal set out in Article 3 of Directive 2008/95 apply to the mark must be assessed, on the one hand, by reference to those goods or services and, on the other hand, by reference to the perception which the relevant public has of those goods or services. That assessment must be carried out in concreto, taking into consideration all the relevant facts and circumstances (see, to that effect, judgments of 8 April 2003, Linde and Others, C‑53/01 to C‑55/01, EU:C:2003:206, paragraph 75, and of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraphs 33 and 34).
27


In that regard, it must be noted that it is clear from the settled case-law relating to Article 7(1)(b) of Regulation No 207/2009, which repeats the wording of Article 3(1)(b) of Directive 2008/95, that the distinctive character of a trade mark, for the purposes of Article 7 of that regulation, means that the mark in question makes it possible 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 those of other undertakings (judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited).
28


As regards marks composed of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded as such by virtue of such use. For the purposes of assessing the distinctiveness of such marks, it is inappropriate to apply to those marks criteria stricter than those applicable to other signs (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 25 and the case-law cited).
29


In that regard, the Court has noted that the laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark cannot be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of the goods or services. It follows that, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood, perhaps even primarily understood, as a promotional formula has no bearing on its distinctive character (judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 45, and the order of the President of the Court of 12 June 2014, Delphi Technologies v OHIM, C‑448/13 P, not published, EU:C:2014:1746, paragraph 36).