Articles 2 and 3(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the classification as a ‘colour mark’ or ‘figurative mark’ given to a sign by the applicant on registration is a relevant factor among others for the purpose of establishing whether that sign can constitute a trade mark within the meaning of Article 2 of the directive and, if so, whether it is distinctive within the meaning of Article 3(1)(b) of that directive, but does not release the competent trade mark authority from its obligation to carry out a global assessment of distinctive character by reference to the actual situation of the mark considered, which means that that authority cannot refuse registration of a sign as a mark on the sole ground that that sign has not acquired distinctive character through use in relation to the goods or services claimed.
Article 2 of Directive 2008/95 must be interpreted as precluding, in circumstances such as those in the main proceedings, the registration of a sign as a mark due to an inconsistency in the application for registration, which it is for the referring court to ascertain.
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Oy Hartwall Ab Directive 2008/95/EC, Arts. 2, 3(1)(b). “Hartwall”. IIC 50, 905–906 (2019). https://doi.org/10.1007/s40319-019-00846-5
- Refusal to register or invalidity
- Assessment of distinctive character by reference to the actual situation
- Colour per se or colour combination as a trade mark
- Graphic representation of a mark submitted as a figurative mark
- Insufficiently clear and precise graphic representation