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Judgment of the Court of 6 May 2003. Libertel Groep BV v Benelux-Merkenbureau.

C-104/01 • 62001CJ0104 • ECLI:EU:C:2003:244

  • Inbound citations: 105
  • Cited paragraphs: 0
  • Outbound citations: 3

Judgment of the Court of 6 May 2003. Libertel Groep BV v Benelux-Merkenbureau.

C-104/01 • 62001CJ0104 • ECLI:EU:C:2003:244

Cited paragraphs only

«(Trade marks – Approximation of laws – Directive 89/104/EEC – Signs capable of constituting a trade mark – Distinctive character – Colour per se – Orange)»

1.. Approximation of laws – Trade marks – Directive 89/104 – Signs capable of constituting a trade mark – Colour per se – Conditions (Council Directive 89/104, Art. 2)

2.. Community law – Interpretation – Directives – Statement of the Council entered in its minutes – Whether to be taken into consideration – Not permissible in the absence of any reference to it in the directive itself

3.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Possibility that a colour per se may be distinctive – Conditions (Council Directive 89/104, Art. 3(1)(b) and 3(3))

4.. Approximation of laws – Trade marks – Directive 89/104 – Registration of a new trade mark – Examination of a sign by the competent authority – Need for a thorough examination (Council Directive 89/104, Arts 2 and 3)

5.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Determination whether a colour per se has a distinctive character – Account taken of the public interest in not unduly restricting the availability of colours (Council Directive 89/104, Art. 3(1)(b) and 3(3))

6.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Recognition of distinctive character of a colour per se – Acquisition through use (Council Directive 89/104, Art. 3(1)(b))

7.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Recognition of distinctive character of a colour per se – Conditions (Council Directive 89/104, Art. 3(1)(b) and 3(3))

8.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Determination whether a colour has a distinctive character and the public interest in not unduly restricting the availability of colours – Account taken of the number of goods or services for which registration applied for (Council Directive 89/104, Art. 3(1)(b) and 3(3))

9.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Trade mark devoid of distinctive character – Determination whether a trade mark has a distinctive character – Examination by reference to the actual situation, including use made of the mark (Council Directive 89/104, Art. 3(1)(b) and 3(3))

JUDGMENT OF THE COURT 6 May 2003 (1)

((Trade marks – Approximation of laws – Directive 89/104/EEC – Signs capable of constituting a trade mark – Distinctive character – Colour per se – Orange))

In Case C-104/01,

REFERENCE to the Court under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 3 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),

THE COURT,,

composed of: J.-P. Puissochet, President of the Sixth Chamber, acting for the President, M. Wathelet and C.W.A. Timmermans, Presidents of Chambers, C. Gulmann, D.A.O. Edward, P. Jann, F. Macken, S. von Bahr and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: P. Léger,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of the Benelux-Merkenbureau, represented by C.J.J.C. van Nispen, of the Netherlands Government, represented by J. van Bakel, acting as Agent, of the United Kingdom Government, represented by M. Tappin, Barrister, and of the Commission, represented by H.M.H. Speyart, at the hearing on 30 April 2002,

after hearing the Opinion of the Advocate General at the sitting on 12 November 2002,

gives the following

Paris Convention

Community legislation

...

provided he uses them in accordance with honest practices in industrial or commercial matters.

Uniform Benelux Law on Trade Marks

Preliminary considerations

The third question

The fourth question

On those grounds,

THE COURT,

in answer to the questions referred to it by the Hoge Raad der Nederlanden by order of 23 February 2001, hereby rules:

Puissochet

Wathelet

Timmermans

Gulmann

Edward

Jann

Macken

von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 6 May 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

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