«(Approximation of laws – Trade marks – Directive 89/104/EEC – Grounds for refusal to register – Article 3(1)(b), (c) and (e) – Three-dimensional shape of product mark – Distinctive character – Preserving the availability of certain signs in the public interest)»

1.. 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 three-dimensional shape of product trade mark has a distinctive character – Application of the same criteria as for other types of mark (Council Directive 89/104, Art. 3(1)(b) and 3(3))

2.. Approximation of laws – Trade marks – Directive 89/104 – Where registration of a trade mark may be refused or the trade mark declared invalid – Three-dimensional shape of product marks – Specific grounds for refusal in Article 3(1)(e) – Preliminary obstacle not preventing the application of the other grounds for refusing registration – Examination of the grounds for refusal in Article 3(1)(c) – Account taken of the public interest in preserving the availability of certain marks (Council Directive 89/104, Art. 3(1)(c) and (e) and 3(3))

JUDGMENT OF THE COURT 8 April 2003 (1)

((Approximation of laws – Trade marks – Directive 89/104/EEC – Grounds for refusal to register – Article 3(1)(b), (c) and (e) – Three-dimensional shape of product mark – Distinctive character – Preserving the availability of certain signs in the public interest))

In Joined Cases C-53/01 to C-55/01,

REFERENCES to the Court under Article 234 EC by the Bundesgerichtshof (Germany) for a preliminary ruling in the proceedings pending before that court between

on the interpretation of Article 3(1)(b), (c) and (e) 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: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, R. Schintgen and C.W.A. Timmermans, Presidents of Chamber, C. Gulmann, D.A.O. Edward, A. La Pergola, V. Skouris, F. Macken (Rapporteur), J.N. Cunha Rodrigues, and A. Rosas, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Winward Industries Inc., represented by M. Schaeffer, Rado Uhren AG, represented by D. von Schultz,the United Kingdom Government, represented by P. Ormond, acting as Agent, assisted by M. Tappin, Barrister, and the Commission, represented by N.B. Rasmussen and P.F. Nemitz, at the hearing on 17 September 2002,

after hearing the Opinion of the Advocate General at the sitting on 24 October 2002,

gives the following

Community legislation

...

...

Domestic legislation

may not be protected as a trade mark.

...

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesgerichtshof by orders of 23 November 2000, hereby rules:

Rodríguez Iglesias

Puissochet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Skouris

Macken

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 8 April 2003.

R. Grass

G. C. Rodríguez Iglesias

Registrar

President