Matratzen Concord AG v Hukla Germany SA.
Date: 2006-03-09
18. As a preliminary point, it should be noted that, in the context of the procedure established by Article 234 EC providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may find it necessary to consider provisions of Community law to which the national court has not referred in its question (see, in particular, Case C-230/98 Schiavon  [2000] ECR I-3547, paragraph 37, and Case C-469/00 Ravil  [2003] ECR I-5053, paragraph 27).
19. As is clear from the seventh recital in the preamble, the Directive lists in an exhaustive manner the grounds for refusal or invalidity of registration concerning the trade mark itself.
20. According to settled case-law, in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law (see, in particular, Case C-352/95 Phytheron International  [1997] ECR I-1729, paragraph 17; Case C-324/99 DaimlerChrysler  [2001] ECR I-9897, paragraph 32; and Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 81).
24. In fact, to assess whether a national trade mark is devoid of distinctive character or is descriptive of the goods or services in respect of which its registration is sought, it is necessary to take into account the perception of the relevant parties, that is to say in trade and or amongst average consumers of the said goods or services, reasonably well-informed and reasonably observant and circumspect, in the territory in respect of which registration is applied for (see Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee  [1999] ECR I-2779, paragraph 29; Case C-363/99 Koninklijke KPN Nederland  [2004] ECR I-1619, paragraph 77; and Case C-218/01 Henkel  [2004] ECR I-1725, paragraph 50).
25. It is possible that, because of linguistic, cultural, social and economic differences between the Member States, a trade mark which is devoid of distinctive character or descriptive of the goods or services concerned in one Member State is not so in another Member State (see, by way of analogy, concerning the misleading nature of a trade mark, Case C-313/94 Graffione  [1996] ECR I-6039, paragraph 22).
26. Consequently, Article 3(1)(b) and (c) of the Directive 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 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.
28. According to settled case-law, in the context of the application of the principle of the free movement of goods, the Treaty does not affect the existence of rights recognised by the legislation of a Member State in matters of intellectual property, but only restricts, depending on the circumstances, the exercise of those rights (Case 119/75 Terrapin [1976] ECR 1039, paragraph 5; Case 58/80 Dansk Supermarked  [1981] ECR 181, paragraph 11; and order in Matratzen Concord  v OHIM , paragraph 40).
32. In conclusion, the answer to the question referred is that Article 3(1)(b) and (c) of the Directive 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 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.
Costs